Commentary: The Nunes memo is out, and it's a joke and a sham
The whole point of the Nunes memo was always to create a pretext for President Donald Trump to try to take control of special counsel Robert Mueller III's probe, and it remains to be seen whether Trump will convince himself that it does give him this pretext.
But this is going to take a lot of self-deception on Trump's part (not that he won't rise to the occasion), and a lot of aggressive goading from his favorite cable news personalities - that is, if reality even matters in the least anymore. Because the memo itself is really just a bad joke.
The memo from House Intelligence Committee Chairman Devin Nunes, R-Calif., has now been released, and its contents are almost comically thin in comparison with the great scandal Trump's media allies have been hyping for weeks and weeks and weeks.
The memo purports to show that the process by which the FBI and Justice Department obtained approval from the Foreign Intelligence Surveillance Court to conduct surveillance on former Trump adviser Carter Page was deeply tainted. It does this by straining every which way to suggest that the basis for the warrant was the so-called "Steele dossier," in which there's Dem-funded research by former British spy Christopher Steele. This is supposed to show that the genesis of the probe was grounded in partisan dirty tricks, and that, as a result, the current investigation by Mueller - which grew out of the original FBI probe launched during the campaign - constitutes a "deep state" coup to overthrow the president, justifying an effort to quash or constrain it.
But the memo doesn't come anywhere near to telling the story that Trump's allies have long hoped it would tell.
The memo claims that the dossier formed an "essential part" of the application for surveillance approval, which was first obtained in October 2016, but also that the application "omitted" the fact that the research had been funded by Democrats. The memo also claims to have proof of Steele's anti-Trump animus, characterizing a conversation in which he signaled his "passionate" opposition to Trump.
We already knew from media reports that the memo would claim this omission. But it is not clear that the omission is really a problem at all, and it's not clear how much Steele's feelings about Trump matter, either. As Fourth Amendment scholar Orin Kerr recently wrote, claiming these things isn't enough. You'd have to establish that the funding and the bias actually undermine the credibility of the information he provided:
"In the world of actual law, there needs to be a good reason for the judge to think, once informed of the claim of bias, that the informant was just totally making it up. ... What matters is whether, based on the totality of the circumstances, the information came from a credible source.
"That's a problem for #ReleaseTheMemo, I think. To my knowledge, Steele was not some random person motivated by an ongoing personal feud against Trump or Carter Page. ... Instead, Steele was a former MI6 intelligence officer and Russia expert. He was hired to do opposition research because of his professional reputation, expertise and contacts. And his work was apparently taken pretty seriously by United States intelligence agencies. Of course, that doesn't mean that what's in the dossier is true. Maybe the key allegations are totally wrong. But if you're trying to argue that Steele's funding sources ruin the credibility of his research, his professional training and background make that an uphill battle."
The memo does not come even close to clearing that threshold.
The memo also claims that "no surveillance warrant would have been sought from the FISC without the Steele dossier information." Similarly, as noted above, the memo also claims the dossier formed an "essential part" of the surveillance application.
But it is simply impossible to know from this wording what the claim is actually supposed to mean. An "essential part" is very vague - probably intentionally so. Nor does the memo even say directly that no warrant would have been sought without the dossier itself; it only says it would not have been sought without the information in it. This could mean the information existed elsewhere and that the dossier merely corroborated it.
We just don't know what these things mean. By themselves, they mean next to nothing. To get a clearer sense of what they do mean, and to fully evaluate their significance, we'd have to understand what else went into the application, and what else investigators knew prior to making it.
And you know who does know that information? Rep. Adam Schiff, D-Calif., who has authored a detailed rebuttal to the Nunes memo. As the Democrats put it in their response to the Nunes memo Friday:
"The premise of the Nunes memo is that the FBI and DOJ corruptly sought a FISA warrant on a former Trump campaign foreign policy adviser, Carter Page, and deliberately misled the court as part of a systematic abuse of the FISA process. ... none of this is true. The FBI had good reason to be concerned about Carter Page and would have been derelict in its responsibility to protect the country had it not sought a FISA warrant.
"In order to understand the context in which the FBI sought a FISA warrant for Carter Page, it is necessary to understand how the investigation began, what other information the FBI had about Russia's efforts to interfere with our election, and what the FBI knew about Carter Page prior to making application to the court - including Carter Page's previous interactions with Russian intelligence operatives. This is set out in the Democratic response which the GOP so far refuses to make public.
"... the investigation did not begin with, or arise from Christopher Steele or the dossier, and ... the investigation would persist on the basis of wholly independent evidence had Christopher Steele never entered the picture."
If Schiff's response is released, it will likely make the Nunes' memo's claims look even more comically thin.
There is also this remarkable passage from the memo, concerning former Trump campaign adviser George Papadopoulos, who is cooperating with Mueller as part of a plea deal:
"The Papadopoulos information triggered the opening of an FBI counterintelligence investigation in late July 2016 by FBI agent Pete Strzok. Strzok was reassigned by the Special Counsel's office ... for improper text messages with his mistress, FBI Attorney Lisa Page ... where they both demonstrated a clear bias against Trump."
This is apparently supposed to show that the investigation was opened by a biased FBI agent. But it actually shows that the FBI investigation predated the supposed misuse of the Steele Dossier, and shows that the cause of the investigation was information provided by Papadopoulos, which is what the New York Times reported. Remember, this Times report was widely mocked by Trump allies. Yet the memo actually lends that story more credence, and in the process, undercuts the whole alt-narrative that the genesis of the probe was illegitimate.
Some conservatives reached the same conclusion. National Review writer David French tweeted:
"In reflecting more on this, I think Nunes may have just blown up the core Trump defense to the 'Russia investigation' - that it was all fruit of the poisonous Steel tree. Not true. It was already underway."
If the origins of the investigation actually supported the Nunes narrative, you'd think his memo would have hinted at it. But it did not.
It might get even worse from here, because Schiff's response will also likely fill in details on the genesis of the probe that Nunes' memo only hinted at, making the memo's glaring omission on this point look even sillier. By the way, even if you think that this memo did reveal some troubling conduct on the part of Strzok, he was reassigned by Mueller, which the memo actually concedes in an effort to create the aura of scandal.
Up until now, Republicans have been touting this memo as the blockbuster that will bring the entire Russia investigation crashing down. One Trump ally described it as "worse than Watergate." Trump had reportedly told friends, as CNN reported, that the memo "would make it easier for him to argue the Russia investigations are prejudiced against him." Sean Hannity said the revelations in the memo "makes Watergate like stealing a Snickers bar from a drug store" and told his viewers it constitutes "the biggest political scandal in American history."
When you step back from the memo's details, the whole affair looks even more ridiculous. That's because this entire "scandal" centers only on the surveillance of Page.
But what does Page have to do with the rest of the Trump/Russia story and the investigation into it? Does Page have anything to do with Paul Manafort's alleged money laundering? Does he have anything to do with Russia reaching out to Papadopoulos? Does he have anything to do with Russia hacking into Democratic email systems to aid the Trump campaign? Does he have anything to do with Michael Flynn's contacts with the Russian ambassador, about which he lied to the FBI? Does he have anything to do with Donald Trump Jr., Jared Kushner, and Manafort meeting with a group of Kremlin-connected Russians to obtain dirt on Hillary Clinton? Does he have anything to do with President Trump firing James Comey, which Trump himself admitted was done for the purpose of hindering the Russia investigation? Does he have anything to do with all the other ways Trump may have obstructed justice?
The answer to all those questions is no. Page is a peripheral figure at best. Even if the memo did depict what it sets out to depict about the surveillance of Page, it wouldn't change a thing about the overall Russia scandal. But the memo doesn't even do that.
Paul Waldman is a contributor to The Plum Line blog, and a senior writer at The American Prospect.
Greg Sargent writes The Plum Line blog, a reported opinion blog with a liberal slant -- what you might call “opinionated reporting” from the left.