February 3rd, 2018

More thoughts on the Nunes memo and the reaction to it

The constant drip of leaks prior to the Nunes memo’s release has had the twin functions of desensitizing the public to the news in it, thereby reducing its shock value, and of allowing those who want to minimize it to say there’s no there there. To a certain degree this approach has been very successful with liberals and the left. You can see the evidence all around the blogosphere as commenters fan out to spread the word that there’s nothing of import in the memo.

And this from the same people who said the memo was so full of leaks of classified information that its release would jeopardize national security. Since the memo actually contained nothing of the sort, that argument has dissipated as though it never happened. No one is forced to answer for the misrepresentation. Now we’re just on to the next thing.

Maybe my memory is playing tricks on me, but my recollection is that everyone except the most extreme wings of both parties used to be in agreement that, if allegations such as those in the Nunes memos were true, it would constitute a grave and dangerous misuse of the FISA court system by the FBI. Very few people would buy the idea that the offenses themselves were unimportant. But that seems to be at least part of the present-day atmosphere, a kind of blase shrug of the shoulders. The outrage is all on one side, and perhaps if the parties were reversed it would be all on the other side (although in Watergate days there was plenty of outrage on the part of Republicans, which is what actually propelled Nixon’s resignation).

It is indeed ironic, deeply ironic, that the FISA court system that was set up in the wake of Watergate has allegedly been abused by a political party seeking to harm a political rival:

The Foreign Intelligence Surveillance Act (FISA) was introduced on May 18, 1977, by Senator Ted Kennedy and was signed into law by President Carter in 1978…

The FISA resulted from extensive investigations by Senate Committees into the legality of domestic intelligence activities. These investigations were led separately by Sam Ervin and Frank Church in 1978 as a response to President Richard Nixon’s usage of federal resources to spy on political and activist groups. The act was created to provide judicial and congressional oversight of the government’s covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security.

But virtually any institution can be compromised. Whether that happened and exactly to what extent it happened in the case of the FBI, Carter Page, the FISA court, and the Steele dossier remains to be seen. The value of the Nunes memo is that it sets up the charges, and those charges are serious and merit further investigation and further disclosure of information. The whole thing may end up being a tempest in a teapot as more facts emerge, but at the moment it is—and should be—a big effing deal, as Joe Biden might say if the shoe were on the other foot.

Today there’s a lot of talk about whether or not the FBI may have actually given the FISA court some of the information about the funding behind the Steele dossier. Like so many reports, this one was made by anonymous sources (“two U.S. officials familiar with the matter”), and we have no idea if it’s true or not and no idea what the FBI actually said. For what it’s worth, though, here’s the story:

The Justice Department may have told a court of the political origins of an opposition research dossier that formed part of the application for a warrant to surveil a former Trump campaign adviser.

The Washington Post reported Friday that Justice Department officials made “ample disclosure of relevant, material facts” to the court that a political entity provided financial backing for the research, though they did not name Hillary Clinton’s presidential campaign or the Democratic National Committee (DNC).

We don’t know what the FISA application actually said–we don’t know whether it said anything of the sort, because we haven’t seen it, and we don’t even know who those anonymous “officials familiar with the matter” are, how reliable they are, or how they came by that familiarity. We can certainly assume that they didn’t show the FISA application to the WaPo reporter writing the story, or that would have been stated.

But let’s accept for the sake of argument that the FISA application did include an indication that some “political entity” had backed the dossier. The FISA court certainly would not have assumed that it was actually the DNC and the Clintons who were that entity or entities. Remember, among other things, that many Republicans were very anti-Trump, and that the MSM originally reported that the Steele dossier was funded by Republicans. There are a lot of political entities in the world, some big and some small, major and very minor. The DNC and Clinton were among the biggest fishes of all, and the most suspect in terms of their motives. The FISA court was unaware they were the funders of the dossier, although the FBI was well aware of it.

What did the Nunes memo actually state regarding this?:

a) Neither the initial [FISA] application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior and FBI officials.

b) The initial FISA application notes Steele was working for a named U.S. person, but does not name Fusion GPS and principal Glenn Simpson, who was paid by a U.S. law firm (Perkins Coie) representing the DNC (even though it was known by DOJ at the time that political actors were involved with the Steele dossier). The application does not mention Steele was ultimately working on behalf of—and paid by—the DNC and Clinton campaign, or that the FBI had separately authorized payment to Steele for the same information.

If the unnamed “officials” are correct and the FISA application said that “a political entity” helped fund the dossier, is this contradicted by the Nunes memo? The memo states that the FISA application failed to disclose that the dossier funding was provided by “DNC, Clinton campaign, or any party/campaign.” Those three things—the DNC, the Clinton campaign, and a party/campaign are certainly all “political entities,” but “political entity” is a much broader term that encompasses a lot of other things. So if the report of the unnamed “officials” is true then no, the FBI still didn’t disclose those things specifically, it only stated a much more general fact (“political entity”) although it knew the specifics (DNC and Clinton) at the time. So yes, the FISA court would have known that politics was somehow involved, but virtually nothing else.

There’s also this:

Nor was the court informed that the dossier’s author, former British spy Christopher Steele, told a senior Justice Department official that he was “desperate” to prevent Trump from being elected president.

Moreover, despite presenting dossier information as probable cause on four separate occasions — for the initial FISA warrant in October 2016, and three times in the ensuing months — the FBI failed to verify the dossier’s explosive allegations and failed to inform the court that its efforts to corroborate the allegations had been unavailing. Indeed, the memo relates that the government once presented a news story to the court as corroboration for Steele’s claims, apparently unaware that Steele himself was the source for the news story.

These are also shocking facts—that is, they should be shocking to everyone concerned with the rule of law. Apparently, they’re not shocking to a lot of people.

And there’s more that’s shocking, or should be:

Obviously, the obscure Page was not the main target of the investigation. What animated the government was the possibility of Russian collusion with the Donald Trump presidential campaign. It is also what animated Steele in crafting the dossier. Yet, the Intelligence Committee’s memo notes former FBI director James Comey’s acknowledgement in June 2017 Senate testimony that these dossier allegations were “salacious and unverified.”

It appears that they always were. The FBI’s assistant director Bill Priestap told the committee that efforts to corroborate Steele were in their “infancy” when the first warrant was sought.

So the problem is not just what the FBI may have presented to the FISA court. The problem is also what the FBI knew and when they knew it, and what their motive was for deciding to go ahead and seek the warrant anyway.

15 Responses to “More thoughts on the Nunes memo and the reaction to it”

  1. Geoffrey Britain Says:

    If your memory is playing tricks on you neo, then I too suffer from the same affliction.

    The reason why so many on the left are not disturbed is because for such as they, politics does NOT stop “at the water’s edge”. Nor is that surprising, since they agree with George Soros that, “The main obstacle to a stable and just world order is the United States”.

    No, if the parties were reversed, there would be massive outrage on the right. As, a political party ‘weaponizing’ the premier investigative and justice agencies is a direct attempt at a ‘soft coup’ and a mortal threat to our representative democracy.

    We support the right of those on the left to disagree, we simply expect them to abide by the Constitution. Whereas, the Left seeks to gut the Constitution, viewing it as an impediment to their agenda.

    Since the FISA court rejects and/or ‘modifies’ only 1.5% of the fed’s applications, it effectively acts as a rubber stamp. It’s a virtual certainty that relevant information was withheld and that the presiding judge(s) had the curiosity of a dead cat.

    IMO, the problem goes far beyond “what the FBI knew and when they knew it, and what their motive was for deciding to go ahead and seek the warrant anyway.”

    The real problem is the half of America who believe that the destruction of a non-politically correct America is preferable to the continuance of America as a bastion of liberty.

    Liberty and political correctness are antithetical.

  2. CapnRusty Says:

    Adam Schiff’s predictions of intergalactic collapse were the memo to be released constitute the first and deranged shriek of “Wolf” by the little boy. As Nunes, Jordan, Grassley and others dig deeper, the little boy will shriek again, but each time fewer and fewer people will pay any heed. I think we’ll get to the bottom of this, and I think this, and the disclosures yet to come, will help President Trump and the Republicans in the fall.

  3. Yancey Ward Says:

    A good judge would have asked the DoJ who the political party was that paid for it if that is how the application really worded the origin story.

    This is easy to answer- the applications are still in the SCIF, and Gowdy can still go look at them to reconfirm things, as can Schiff himself. I think we will eventually see the applications in a redacted form that will not hide what origins were described in the document, and Congress can subpoena the judges who approved them, and can subpoena the court transcripts, though this would initially be in closed session. There are tons of questions to ask, and tons of people who can take an oath and answer them. Congress is going to be very busy with oversight the rest of this term.

  4. Dave Says:

    The never ending battle between God vs devil, good vs evil, light vsdark, yin vs yan, republicans vs democrats, capitalism vs socialism, logic vs emotion, liberty vs equality… evil will always exist because the following paradox, the liberty the good people champion will always leave room for evil people to exploit and grow. when good guys are in charge they will never take away the freedom for people to choose to become evil. Evil has the ability to completely wipe out good because they have ruthlessness to do so, but there will always be room in a free world for evilness to grow. The moment the good guys ponder about being proactive and adopt measures that limit people freedom to prevent evil from happening in the future they are fallen and become the bad guys…

  5. Liz Says:

    Yancey – Nunes delegated the review of the FISA Applications to Gowdy because he is a lawyer and would pick up on more points.

    The one point that bugs me is that there was the original application and 3 extensions so that the order was in effect for 360 days – well in to Trump’s first year. It seems that we have been reading about the Steele document for a long time, so don’t the judges listen to the news – why didn’t the judge ask more questions?

    Remember how Trump tweeted about his offices being wiretapped? I saw an article that mentioned that Obama’s NSA Director Mike Rogers met with Trump in NY and was quickly canned by Obama. Trump also moved interviews to one of his own places. I looked for a link, but found a different one that is dated from March 2017.

    https://theconservativetreehouse.com/2017/03/03/occams-razor-did-nsa-admiral-mike-rogers-warn-trump-on-november-17th-2016/

    The memo became clearer when I wrote out a time line with date, what happened and who was involved. I’m missing some points of when the person really found out and who they may have discussed or reported their opinions. I wonder if the Rs on the committee did a complete timeline and had it available for others to see. I suspect they gave people more information than what is in the memo because of the very strong opinions of everyone who read it.

    It will be interesting to read memo #2, 3, etc.

  6. Frog Says:

    The memo is a scathing indictment of government power centers, viz. FISA and FBI, operating in secret and in contravention to the Constitution.
    FISA is the product of Ted Kennedy’s office? The Grubers were at work then, passing him work product. They’ve been working for a long time, deluding, deceiving, dishonoring.
    Who’da thought Mr Chappaquidick would be driving government secrecy disguised in the cloak of law?

  7. AesopFan Says:

    Yancey Ward Says:
    February 3rd, 2018 at 6:59 pm
    A good judge would have asked the DoJ who the political party was that paid for it if that is how the application really worded the origin story.

    This is easy to answer- the applications are still in the SCIF, and Gowdy can still go look at them to reconfirm things, as can Schiff himself.
    * * *
    After the Democrats have their inning (memo)*, I hope the GOP comes back to bat with some of this.
    Maybe they are running O’Keefe’s playbook of letting out a little until the Left runs up their counter-story, then releasing the evidence to demolish it.

    h/t imagery from Jim
    http://neoneocon.com/2018/02/02/and-the-incredibly-fair-and-unbiased-james-comey/#comment-2362356

  8. AesopFan Says:

    Geoffrey Britain Says:
    February 3rd, 2018 at 5:09 pm

    Since the FISA court rejects and/or ‘modifies’ only 1.5% of the fed’s applications, it effectively acts as a rubber stamp. It’s a virtual certainty that relevant information was withheld and that the presiding judge(s) had the curiosity of a dead cat.
    * * *
    On yesterday’s threads someone pointed to the Wikipedia article on the FISC, which I read.
    Apparently, applications can be submitted in some kind of draft mode, then modified until they meet the judges approval, after which they are then approved, so that’s not really rubber-stamping in the conventional sense of the term.
    The frequency and degree of mods might be disputable, however.
    In those circumstances, for an application to NEVER be approved would be pretty serious.

  9. AesopFan Says:

    WaPo is screaming “nothing to see here” of course, but they did post a useful graphic on the characters in the cast.
    https://www.washingtonpost.com/graphics/2018/politics/nunes-memo-explained/?utm_term=.e8f95f001cd9

  10. TommyJay Says:

    People can and will quibble endlessly about how much sourcing info the FISA warrant petitioner is required to give. But, did they absolutely know that Steele was the source for the Isikoff YahooNews article. If yes, then they lied to the FISC by calling the article independent corroboration.

    Liz makes the excellent point that all of this stuff is quite old now. For example, some of the basic findings in the Nunes memo probably have been known to many or most within the intelligence community for 6 months or so. Has the FISC taken any action in response or were they ignorant till now? Will FISC just blow this all off, unless there is a big stink in the MSM? The latter will likely never happen

  11. AesopFan Says:

    TommyJay Says:
    February 4th, 2018 at 12:03 am
    People can and will quibble endlessly about how much sourcing info the FISA warrant petitioner is required to give. But, did they absolutely know that Steele was the source for the Isikoff YahooNews article. If yes, then they lied to the FISC by calling the article independent corroboration.
    * * *
    The memo IIRC says that the FBI didn’t know that the Yahoo article was sourced by Steele.
    Which means they are knaves (lied) or fools (what, the FBI doesn’t independently corroborate its “evidence”? Even the TV cop shows know better than that).

  12. Frog Says:

    Very, very troubling is that Gowdy will not run for re-election.
    Decision is likely based on his frustration with the lethargy of reform processes.
    The Congressional Democrats are loathesome creatures of the night, and the country needs valiant warriors to defend against them.
    The most loathesome are women: Pelosi, Maxine Waters and Shirley Jackson Lee among them. Why is that?

  13. JK Brown Says:

    Everybody was and is looking for a nuke that will wipe out everything. What this memo is is a small charge at the base of the dam. Now that it has gone off, everyone is disappointed. It might be to small or poorly placed, but it might open up just enough to let nature take her course and breach the dam.

    The common theme is the memo was released on Friday, and before the Super Bowl, because it was a nothingburger. Alternatively, I believe it needs to marinate. It needs slow consideration. And its importance is more visible to those with legal training/experience.

    But as Trey Gowdy has said, the FISA warrant problems do not materially impact the Mueller investigation. Although, I would expect it will require much more attention to dotting the “i”s and crossing the “t”s.

  14. neo-neocon Says:

    JK Brown:

    Actually, if the parties had been reversed, this would have been a nuke.

  15. Ymar Sakar Says:

    The Congressional Democrats are loathesome creatures of the night, and the country needs valiant warriors to defend against them.

    The more you fight the Leftist alliance by adopting their methods as legitimate, instead of killing evil, the more you will become the same as them, guaranteed.

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