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The Nunes Memo Matters—But Not For the Reason You Think

If you're in search of a constitutional crisis, here it is.
Devin Nunes

California Congressman Devin Nunes’s now-infamous memo contains the details of how the Department of Justice secured a FISA warrant to surveil former Donald Trump campaign advisor Carter Page. Many feel the memo raises questions about bias inside the FBI and the legal and ethical use of a Trump opposition research dossier as justification for a FISA warrant. Others claim it’s irrelevant, a dud.

But when you wave away all the partisan smoke, what’s left is that the Nunes memo confirms that American intelligence services were involved in a presidential campaign and remained so in the aftermath. That’s the real takeaway from the political hysteria of the past week.

The FBI conducted an investigation, the first ever of a major-party candidate in the midst of a presidential contest, that exonerated Hillary Clinton of wrongdoing over her private email server, a government-endorsed “okay” for her expected victory. No real probe was ever conducted into the vast sums of money moving between foreign states and the Clinton Foundation, dead-ending those concerns to partisan media.

A month before the election, the Obama administration accused the Russian government of stealing emails from the Democratic National Committee. The director of national intelligence, James Clapper, said the leaked emails (which reflected poorly on Clinton) “are intended to interfere with the U.S. election process.” The FBI swung again and said well maybe there was something to see in Clinton’s emails, buried on Anthony Weiner’s laptop. The CIA and NSA, meanwhile, leaked like cheap diapers throughout the campaign. Trump owes money to Russia. Trump’s computers communicate with Russia. The Russians have sexy kompromat on Trump. That the newly elected president is literally a tool of Russian intelligence became a common stipulation in the national conversation (John McCain on the Nunes memo release: “We are doing Putin’s job for him.”)

Leave aside the question of what in all of the above is actually true. Maybe Clinton’s private email server exposed no secrets. Maybe Trump’s real estate ventures have dirty Russian money in them. It is doubtful any of us will ever know. What is important is each of those actions by the intelligence community affected the course of the election. They may not have always shifted votes in the intended way, and there theoretically may have been no intention per se, but the bare-naked fact is that unlike any previous presidential election, the intelligence community played an ongoing public role in deciding who ended up in the White House, and they’re now continuing that role to determine how long the elected president remains there.

Of course the intelligence community was deep in the Steele dossier, the focal point of the Nunes memo. Christopher Steele is a former British intelligence officer with a long history of close work with his American counterparts. He was first commissioned by a conservative website to develop dirt (“opposition research”) on candidate Trump. Funding swiftly shifted to Clinton surrogates, who saw the thing through to being leaked to the FBI. Steele’s product, the dossier, is a collection of second-hand gossip, dangling suggestions of entanglements between Trump and shadowy Russians, and, of course, the infamous pee tape. Nothing in the dossier has ever been confirmed. It might all be true, or none of it. We will likely never know.

The FBI nonetheless embraced the dossier and morphed it from opposition research into evidence. Per the Nunes memo, the Steele dossier and a “collaborating” article actually derived from the same information leaked by Steele to the author then became part the legal justification for a FISA surveillance warrant issued against Trump associate Carter Page. A product of unclear reliability, created and promoted via an opponent’s campaign and abetted by the Western intelligence community, justified the demand to spy on Page.

Much will be made of how influential, or not, the Steele dossier was in obtaining the original FISA warrant, and whether or not its use was legal at all. The Nunes memo states that recently “retired” FBI number two Andrew McCabe allegedly confirmed that no FISA warrant would have been sought without the Steele dossier, though he now denies saying that during still-classified and still-unreleased testimony. Senior DOJ officials knew the dossier’s politics, but left that information off their FISA application. Does any of that matter?

We will never know. The Foreign Intelligence and Surveillance Act (FISA) court works in secret. The standards are secret; the results and decisions are secret. None of us knows what matters to a FISA judge in rendering a decision to spy on an American campaign associate. Someone could release the so-called “underlying documents” (they’re typically dozens of pages long) that the DOJ used for the FISA application, but without knowledge of FISA standards, those documents won’t be much help. Yet the apparatus of spying in America, including the FISA court, is widely supported and the authority to spy was just extended with backing from both parties.

If you want to assert that the FISA warrant on Page was apolitical, issued only to collect on his possible role as a Russian agent, and that no strategy, financial, or campaign information was collected, or that if it was it was simply discarded, well, that’s a beneficent view of human nature, never mind a bizarrely generous level of trust in government. Yet even if the intent was righteous and the people involved lawful, the information is stored. Which person or agency has control of it today is not necessarily who will control it in the future—information is forever.

Remember, too, the Nunes memo addresses only one FISA warrant on one person from October 2016; investigations into Trump, et al, had been ongoing well before that. We do not know, for example, what information formed the basis of the July 2016 probe into Trump staffer George Papadopoulos that the Nunes memo mentions—it may have been passed from the Australians via U.S. intelligence. Michael Flynn’s conversations with Russian persons were “inadvertently” monitored and later unmasked (and leaked) by Obama administration officials. Jeff Sessions’ conversations with the Russian ambassador were collected and leaked. The Nunes memo tells us then-associate deputy attorney general Bruce Ohr unofficially funneled additional material from Steele into the DOJ; Ohr’s wife worked for the company that first commissioned the dossier.

If you’re fine with the U.S. government using paid-for opposition research to justify spying on persons connected to presidential campaign staff, then nothing I can say will help you understand how worrisome this disclosure is. Except maybe this: switch the candidate’s name you hate with the one you like. That means President Trump surveilling staff from the Elizabeth Warren or Bernie Sanders 2020 campaign after a dossier commissioned by the Republican Party links them to China. You’d trust Trump, and every future president, with that, right?

The involvement of the intelligence community in the 2016 presidential campaign, clumsy and disorganized as it appears to have been, will be part of the next election, and the ones after that. If you’re in search of a constitutional crisis, here it is. After all, when we let George W. Bush create, and Barack Obama greatly expand, the surveillance state, didn’t we think it would eventually come to this?

Peter Van Buren, a 24-year State Department veteran, is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People and Hooper’s War: A Novel of WWII Japan. Follow him on Twitter @WeMeantWell.



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