On its face, the so-called Nunes memo regarding government surveillance of Trump campaign aide Carter Page in 2016 does little to undermine the case against President Trump and his confederates. It does not contradict the indictments against Paul Manafort or Rick Gates nor explain the plea agreements of Michael Flynn and George Papadopoulos, nor extinguish questions about the extent to which Russia interfered in the election—either in collusion with the Trump campaign or not.
What the Nunes memo does do is escalate the conflict underway between Trump and his partisans and the leaders of the American intelligence and law enforcement communities. This conflict began before Trump’s inauguration but now burns hotter than ever as Special Counsel Robert Mueller’s investigation inches closer to the president himself. In ordering the release of the Nunes memo, Trump has signaled his willingness to betray the national security community in favor of his own interest. Whether the facts in the memo are true or not, or whether they burn intelligence sources and methods, matters little in comparison to Trump’s egregious calculus of personal interest.
The memo was drafted for Nunes by Kashyap Patel, a congressional staffer and former Justice Department national security lawyer. Patel’s great claim to fame before this episode was being scolded in 2016 by a federal judge in Texas for showing up late and without a suit in a counterterrorism case. In his memo to Republican members of the House intelligence committee, Patel essentially asserts that the FBI’s application for a secret surveillance warrant against Page was deeply flawed and itself corrupted by politics.
Patel attacks the secret surveillance warrant on three basic fronts. First, and most significantly, Patel argues that the FBI’s secret surveillance application omitted “material and relevant information” regarding the credibility of the infamous dossier prepared by former British intelligence officer Christopher Steele. Second, Patel writes that this highly controversial Steele dossier formed “an essential part of the Carter Page FISA application.” The implication is that there might not have been any counterintelligence investigation into Trump (and therefore no Mueller inquiry today) had it not been for this fake and politically contrived dossier. However, it’s worth noting that the Nunes/Patel memo undermines this point by stating in its last paragraph that the investigation of Trump’s campaign began before the Steele dossier was prepared, based on information from Papadopoulos and other sources. Third, Patel notes a number of potential conflicts of interest for senior Justice Department officials or lower level investigators and argues these biases tainted the secret surveillance application and should have been disclosed to the court in the warrant application.
Without the full case file, which remains classified, it’s hard to judge the truth of the Nunes/Patel memo. On Friday afternoon, Democratic members of Congress who had seen the full file issued statements denouncing the Nunes/Patel memo. However, Republicans voted Friday night to block the release of a Democratic staff memo that would have provided more context about this matter. So here we are, with a deeply flawed staff memo attacking the integrity, credibility, and processes of the FBI, Justice Department, and intelligence agencies in an investigation touching the most senior officials in the country.
That is, of course, the whole point of this exercise. The accuracy of Patel’s assertions will probably never be tested in a court of law; if impeachment hearings ever occur, this memo will likely be nothing more than a footnote. However, the memo serves its purpose by airing bad facts about the FBI and getting those assertions lots of attention. The sole purpose of the Patel/Nunes memo is to make the FBI, Justice Department, and intelligence community look bad. It does so by publishing unverified facts about secret surveillance processes—via an official-looking document that carries the imprimatur of a lined-through TOP SECRET header—suggesting that the FBI’s work is not to be trusted. Whether the allegations therein are true or false is irrelevant. Merely publishing this document scores points for the White House by impugning the credibility of the FBI in advance of a potential political showdown involving Trump’s own culpability. Attacking the FBI can’t (and won’t) stop the Mueller investigation—but it gives ammunition to Trump’s allies to attack Mueller and his FBI colleagues’ work.
The dysfunctional process used to release the memo illustrates the toxic relationship that now exists between the White House and its own leadership at the Justice Department and intelligence community. In his cover letter transmitting the memo back to Congress for release, White House Counsel Donald McGahn first asserts executive prerogative over classified information, effectively telling Congress that only the White House has the legal power to release classified information to the public. This is an uncontroversial point, but also a self-serving one for a White House facing so much congressional investigative activity; it’s easy to see why the Trump White House would want to ensure it maintained sole authority over what classified information could be released.
McGahn then describes the standards and process used by the White House to release the Nunes/Patel memo. He writes that the “White House review process … included input from the Office of the Director of National Intelligence and the Department of Justice.” However, in the next sentence, McGahn writes, “Consistent with this review … the President has determined that declassification of the Memorandum is appropriate.” The concurrence of the intelligence community and Justice Department are conspicuously absent from this paragraph, which makes sense given the FBI’s official statement criticizing “grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.” Trump directly overruled FBI Director Christopher Wray and Director of National Intelligence Daniel Coats to release the Nunes/Patel memo.
Disagreements over policy between senior officials—or between senior officials and the president—are nothing new. However, it is rare when a president’s self interest collides so directly with the considered judgment of his own hand-picked Cabinet officials or law enforcement agency heads. In this case, Wray and Coats know far more about this matter than what appeared in the Nunes/Patel memo. Based on what they know about this investigation—and the broad portfolio of American intelligence and law enforcement activity—they recommended that Trump block the release of this memo. And yet, Trump overruled them, allowing the Nunes/Patel memo to go forward and attack the FBI, undermining the investigation that moves ever closer to Trump.
Where this leads, no one knows. The Nunes/Patel memo raises enough questions that it will likely generate calls for the release of more classified material from the Russia files, or pressure to leak such material from Congress. If more information comes out, it may damage Trump, but it’s far more likely to damage ongoing investigations, or even compromise ongoing intelligence activities. Trump signaled today that he didn’t care; between the integrity of government investigations and his own political interests, he’ll choose the latter. If he’s willing to overrule his senior intelligence and law enforcement leaders over something so inconsequential and fake as the Nunes/Patel memo, it’s frightening to think what he would choose in an actual crisis, when we really need him to put America first.
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