Nunes Memo Portends Battle Royale Over Mueller Investigation

By James Kitfield

Friday’s release of a classified memo alleging anti-Trump bias and misdeeds at the Department of Justice and FBI will likely be seen by the general public as one more act of naked partisanship in a town convulsed by them. Inside the blast radius in the nation’s capital, however, the memo landed like a bombshell aimed directly at Special Counsel Robert Mueller’s investigation into Russian meddling in the 2016 presidential campaign, and possible collusion by President Donald Trump’s campaign.

In that sense the memo portends a much bigger battle to come, one pitting the major institutions of the government against each other in a no-holds-barred fight likely to inflict many casualties and shake the foundations of the republic. Consider that in the memo’s opening section it lists the senior Department of Justice and FBI officials who signed off on an allegedly tainted surveillance warrant of former Trump adviser Carter Page, including acting Attorney General Sally Yates, FBI Director James Comey, FBI Deputy Director Andrew McCabe, and current Deputy Attorney General Rod Rosenstein, who is overseeing the Mueller investigation. To date Trump has fired Yates and Comey, and forced McCabe into early retirement. The memo is clearly designed to put Rosenstein and possibly FBI Director Christopher Wray in the cross hairs next. The Washington Post reported this week that Trump recently suggested that he should fireRosenstein.

No wonder the immense stakes in play have excited Russian Twitter bots and social media trolls, whose top trending hashtag of recent weeks has been #ReleaseTheMemo.”

Certainly the decision by the White House, House Intelligence Committee Chairman Devin Nunes, R-Calif., and committee Republicans to release the classified memo written by Nunes’ staff shatters important norms that have long governed Congressional oversight of law enforcement and intelligence agencies. In recent days senior Justice Department officials to include Rosenstein have pointedly warned the White House and Nunes that the memo jeopardizes classified information. Trump’s handpicked FBI Director Wray very publicly broke with the White House over the memo this week, warning of “grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.”

“Nunes releasing this memo is completely unprecedented, and it may go a long way towards destroying an intelligence oversight system predicated on the notion that Congressional committees can protect classified materials, and tell the truth about the agencies they oversee,” said Ben Wittes, editor-in-chief of the Lawfare blog and a senior fellow in Governance Studies at The Brookings Institution. In this case Intelligence Committee Republicans have revealed classified information in order to create a false narrative, he said, as a way to undermine the federal law enforcement generally, and the Mueller investigation specifically.

“That’s a serious breach of everything we thought we knew about how the intelligence oversight system works,” said Wittes. “I don’t know if they will succeed, because no one has ever tried this before. But the fact that the White House and [House Majority Leader Paul] Ryan are backing Nunes is pretty shocking.”

In defending the decision by Nunes and Intelligence Committee Republicans to release the memo and their refusal so far to allow Committee Democrats to release a counterpoint memo, Ryan insisted that the document was not aimed at disparaging the integrity of the FBI or the Mueller investigation. “This is a completely separate matter from Bob Mueller’s investigation, and his investigation should be allowed to continue,” Ryan said this week, adding that the “institution” of the Justice Department and FBI is “very important for American life.”

“Speaker Ryan’s logic works only if you believe in the tooth fairy. You can’t have it both ways, condemning the leadership of the FBI without impugning the reputation of the agency.”

Mike Rogers, former chairman of the House Intelligence Committee

Republican Mike Rogers from Michigan was the former chairman of the House Intelligence Committee, and a former FBI Special Agent. “Speaker Ryan’s logic works only if you believe in the tooth fairy. You can’t have it both ways, condemning the leadership of the FBI without impugning the reputation of the agency,” Rogers said in an interview.  If Chairman Nunes was really convinced that there was misconduct on behalf of FBI agents or Justice Department officials, Rogers said, he could have launched a full, bipartisan investigations that explored all the facts. “That’s would have been the appropriate response, because the Intelligence Committee is the one place in Congress where people still expect bipartisanship. Instead we have all this innuendo by dueling Republican and Democratic memos, which is not helpful. Frankly, it’s hurtful.”

The Nunes memo alleges that the FBI relied on false information gleaned from a dossier written by former British spy Christopher Steele, who was conducting opposition research on Trump on behalf of the Democratic National Committee and the Hillary Clinton campaign. The memo asserts that information formed “an essential part” of the evidence used by FBI agents to obtain a warrant from the Foreign Intelligence Surveillance Court (FISA) to conduct surveillance on former Trump campaign adviser Page, and that FISA judges were never informed of Steele’s “anti-Trump financial and ideological motivations.” Importantly, the memo also reveals that Deputy Attorney General Rosenstein approved an application to renew the Page surveillance last spring.

The Intelligence Committee is certainly within its purview to question why Steele’s money stream and apparent ideological biases were not shared with FISA judges. Yet the memo also reveals that the FBI’s FISA application contained other threads of evidence beyond those provided by Steele, including evidence that Trump adviser George Papadopoulous also had suspicious Russian connections. Nor is it unusual for the FBI to include classified intelligence from unsavory sources such as terrorists or narcotics traffickers in FISA applications, let alone individuals conducting political opposition research. As for Steele, he had earlier provided the FBI with critical intelligence that led to the indictment of many current and former officials of FIFA, world soccer’s governing body.

“What I think we’re seeing is a president who doesn’t respect the rule of law in this country, and is thus willing to dismantle the foundations of our democratic system brick by brick. The danger is eventually the foundation could collapse.”

Jeffrey Smith, former chief counsel of the CIA

“If anything, the process for obtaining a surveillance warrant from the FISA court has become more demanding over the years as the court has required more and more clarity and persuasiveness in its applications from law enforcement agencies,” said Jeffrey Smith, formerly the chief counsel of the CIA. “So I just don’t find it credible that the only essential piece of information that was given to the FISA court was from the Steele Dossier. That argument doesn’t hold water. What I think we’re seeing instead is a president who doesn’t respect the rule of law in this country, and is thus willing to dismantle the foundations of our democratic system brick by brick. The danger is eventually the foundation could collapse.”

The memo’s focus on Carter Page as the maligned actor in this drama also has problems. Putting aside the fact that the memo itself confirmed the classified intelligence that Page was under surveillance, the fact is he had been on the FBI’s radar long before he joined the Trump campaign or Steele wrote his dossier.

“What gets lost in all this controversy over the memo is that Carter Page’s contacts with suspected Russian intelligence agents had already raised red flags at the bureau,” said Mike Rogers, the former House Intelligence Committee Chairman. “You may not like one piece of evidence behind the warrant, but let’s not forget that the FBI is supposed to be suspicious of U.S. officials who chum around with likely Russian intelligence agents.”

The Nunes memo also notes that Papadopoulos became the target of an FBI counterintelligence investigation headed by special agent Peter Strzok, who was famously behind anti-Trump text messages to his mistress and FBI attorney Lisa Page. The memo notes that Strzok was reassigned and kicked off the Special Counsel’s investigation when Mueller learned of the texts last summer. “Strzok and Page certainly exhibited egregious judgement and behavior by wearing their anti-Trump biases on their sleeves, which is why I assume Mueller removed Strzok from the Russia investigation as soon as that conduct was discovered,” said Wittes of Lawfare, noting that Page had already been reassigned. “Until someone reveals an inappropriate investigative step that was taken as a result of their bias, it looks like a disciplinary matter.”

The Nunes memo is only the most recent, albeit thunderous salvo in an ongoing campaign by the White House and some Republicans allies in Congress to discredit the leadership of the Department of Justice and FBI, and by inference the legitimacy of the entire Mueller investigation. President Trump has reportedly told aides and confidants that his decision to allow the memo’s release, for instance, was intended to bolster his claim that the Mueller investigation is a “witch hunt.” Democrats fear the president could use it as the basis to fire Rosenstein and possibly even Mueller, which could provoke a constitutional crisis.

On Friday morning Trump tweeted in anticipation of the release of the Nunes memo: “The top Leadership and Investigators of the FBI and Justice Department have politicized the sacred investigative process in favor of Democrats and against Republicans – something which would have been unthinkable just a short time ago.”  On Saturday Trump tweeted that the memo “totally vindicates” him in the “Russian Witch Hunt.”

Equally unthinkable to some observers is the apparent willingness of Trump and some of his Congressional allies to launch a preemptive, scorched earth attack on the integrity of the entire federal law enforcement edifice in an attempt at self-preservation.

“We have a very scared president, and a Republican Congressional leadership worried that he is going to take them all down with him, and their response is thus to attack the messenger.”

Robert Baer, former CIA case officer

“We have a very scared president, and a Republican Congressional leadership worried that he is going to take them all down with him, and their response is thus to attack the messenger,” said former CIA case officer Robert Baer. “Remember Trump learned from his former lawyer Roy Cohn to always attack, attack, attack, something Cohn learned as Joseph McCarthy’s hit man in going after the State Department during the Red Scare. And just as it took the State Department years, if not decades, to fully recover, I worry that this could weaken another critical institution in terms of the FBI.”

James Kitfield is a Senior Fellow at the Center for the Study of the Presidency and Congress. He is also a contributing editor and former senior national security and foreign affairs correspondent for Atlantic Media Company. He has written on defense, national security, intelligence and foreign policy issues from Washington, D.C. for over two decades, His reporting from conflict zones such as the Balkans, Iraq and Afghanistan has won numerous awards, including three prestigious Gerald R. Ford Awards for Distinguished Reporting on National Defense.