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February 8, 2018

The Memo

The past month has been incredibly tumultuous for both the DoJ and FBI, who have long been criticized and antagonized by the president, and have more recently aroused conservative outrage over a highly divisive memo accusing top Justice Department officials of surveillance misconduct. The memo, commissioned by controversial House Intelligence Committee chairman and Trump ally Devin Nunes, alleges that the FBI harbors a bias against President Trump and implicitly conspired against his campaign when improperly applying for a surveillance warrant from the Foreign Intelligence Surveillance Court using evidence from the unverified Steele dossier.

There is a lot to unpack from this memo affair. Against the advice and extraordinary warnings of the FBI and nearly the entire Justice Department, including presidentially-appointed officials, Trump – urged by House Republicans and an influentially large online conservative movement – authorized the memo’s public release on Friday, declassifying information that the intelligence community barely had time to properly vet. The memo itself, according to FBI and DoJ officials as well as Democrats on the House Intelligence Committee and bipartisan members of Senate, seems to be factually untethered and grossly misleading to the public. It reads as an important distraction for Republicans and conservative media at a time when the special counsel’s Russia investigation seems to be getting dangerously close to the president. More to the point, amidst feverish chatter about Trump’s desire to rid himself of Mueller, Rosenstein, and yet more top FBI officials, there is a distinct possibility that the White House could try to use the memo as justification for more firings. At the very least, the Republican message emerging around the memo is one of vindication for the president from the ‘partisan witch hunt’ of the Russia investigations, with a logically unsound correlation being drawn between FBI surveillance prior to the 2016 election and the objectivity of Mueller, his team, and the entire special counsel investigation.

Significant media coverage on the memo began last week, when the House Intelligence Committee held a highly politicized vote to decide whether to release the memo to the public, pending Trump’s final approval. The week before, the Committee had voted to allow the memo, written by chairman Nunes and his staff, to be declassified for all Committee members. Chatter about the memo’s contents had already been building online in conservative and conspiracy forums, as well as throughout Congress; before the House Intelligence Committee’s vote on public release, the Senate Intelligence Committee was denied their request to view the memo’s contents. The hashtag “#ReleaseTheMemo” began to spread across the internet, potentially aided by posts from Russian bots; Facebook and Twitter were evasive when pressed to address allegations of continued Russian political manipulation on their platforms by members of Congress. At that point, although the specific contents of the memo remained classified, the media gleaned from members of the House Intelligence Committee that the document contained ‘evidence’ of FBI and DoJ bias against the Trump administration. We later learned that the memo accused the FBI and Justice Department, including specific members of their leadership, of abuse of authority in a pre-election surveillance operation on then-Trump campaign adviser Carter Page. More specifically, the FBI submitted a warrant application to the FISC, the body that oversees US government surveillance of suspected foreign agents, to surveil Page based on evidence from sources including the Steele dossier. Among the individuals accused of misconduct are former deputy FBI director Andrew McCabe and Deputy AG Rod Rosenstein, who signed off on the warrant application. The basis of the memo’s allegations is that the Steele dossier – an unverified and particularly controversial piece of Democratically-funded espionage – was an inadmissible and possibly malicious piece of evidence upon which to base a surveillance warrant, since its financial origins and political associations had not been disclosed. The narrative the memo then implies is that by applying for and obtaining that warrant, the entire Department of Justice was somehow collaborating against Trump; hence the president’s present-day animosity, and the memo’s extreme drama.

As previously mentioned, the factual foundations of the memo’s ‘evidence’ are shaky. Multiple judges well-versed in surveillance ethics approve each FISC warrant, and sources told PRI that the FBI’s application to surveil Page was based on a variety of evidence materials, the dossier being one part; any evidence used in such an application would necessarily have been confirmed independently. Since the memo’s release, the House Intelligence Committee’s ranking member Adam Schiff has also told reporters that the FISC court had been aware at the time of the application that the Steele dossier was likely politically motivated. Democrats on the Committee called the memo a publicly misleading political stunt from the start, ultimately intended to discredit the DoJ’s Russia investigation. According to Committee Democrats, Nunes waited until the last minute before the Committee’s vote to allow the FBI and DoJ to go over the memo and legally vet its classified information. Justice Department officials repeatedly warned the Committee against publicly releasing the memo, echoing Schiff’s claims that it was misleading and neglected important facts. Assistant AG Stephen Boyd, Deputy AG Rod Rosenstein, and FBI Director Christopher Wray were among the DoJ officials who raised concerns about the memo before the Committee’s vote. The Committee reportedly refused an offer of a relevant intelligence briefing from Wray. Schiff also told reporters that he and other members of the minority had drafted their own memo responding to Nunes’ and providing additional information, but the Committee’s Republican majority voted to suppress the Democrats’ memo and to publicly release Nunes’.

Following the Committee’s vote to declassify the memo, the FBI released an unusual statement condemning the document’s “omissions of fact” and mischaracterized information. Schiff then accused Committee Republicans of amending the memo after the vote, thus sending an altered and technically unapproved version to the White House. A Nunes spokesman countered that the edits were minor and had been previously requested by the FBI and Committee minority. Ultimately it didn’t matter; Trump declassified the memo, Nunes released it immediately, and the president and his supporters touted it as ultimate vindication of their attacks on the FBI and DoJ.

So now that the memo is out, and the suspense is over, what are we left with? It is as yet unclear if or how the White House plans to use the document, and legally it seems to provide little foothold should Trump want to use it against the DoJ. It also seems unlikely that Congress will be able to make it into a larger issue; they had already reached somewhat of an impasse on the validity and objectivity of the Steele dossier, and the memo brings nothing new to that conversation. What the memo has certainly accomplished is provide fodder to Trump supporters’ and conspiracy theorists’ claims that there is a ‘deep state’ plot against Trump, and that the Justice Department, even though it is run by people he appointed, is somehow out to get him. This is a surprisingly popular idea among conservatives, who link it to a diverse string of people and events, drawing on the deep distrust of the Clintons and the FBI’s bizarre mishandling of the Clinton email investigation – a justifiable accusation – as a cornerstone. Although conservative political counterculture can seem comical, it is worthwhile to try to understand why so many Americans believe the Russia investigations are a liberal ‘hoax’. When viewed from a certain angle, the actions of certain members of the FBI, including Comey and now-famous former special counsel prosecutor Peter Strzok, do seem strange and somewhat suspicious – especially to someone who sees evidence everywhere of the deep financial and political tendrils of a corrupt Clinton machine, seeking to stifle upstarts and outsiders. This is my simple take on that perspective, at least; there is certainly much more nuance to consider, and I will address the emerging Strzok issue in my next post.

The reason I think all of this is relevant is that there is a real danger in attacking or undermining such powerful institutions as the FBI and Justice Department. Certainly, our justice and intelligence agencies have dubious histories and deserve to be publicly analyzed with a healthy dose of skepticism, but much of their work is arguably for the benefit of our national security and government function, and even if sometimes politically motivated, their ideally objective work far extends that of a presidential term. This country is already irreconcilably split on the very idea of truth and scientific fact; if our legal apparatus – especially those institutions with the power to hold the rest of government accountable – is similarly dichotomized into political dogma, what principles will our democracy be left with?

President Trump is notoriously antagonistic towards political institutions, especially those associated with investigating matters that are associated with him. He has a history of demanding loyalty from appointees, and threatening those who won’t make a promise. (Trump reportedly asked Rosenstein in December whether he was ‘on his team’ with regards to the Russia investigation, and also reportedly asked McCabe, at the time the acting FBI director shortly after Comey’s dismissal, whom he had voted for in the 2016 election.) Rosenstein and Wray, in seriously campaigning against the memo’s release, seem to be inviting the wrath of a president who has shown his willingness to fire, or at least try to fire, political appointees who don’t support his efforts to discredit the Russia investigations. And, to tie all of this back to the special counsel’s Russia investigation, we also now know that last June Trump tried to fire Mueller, but was dissuaded by White House Counsel Don McGahn’s threat of resignation. He may have been hoping the memo would provide the justification he needed to finally make that call. At the very least, the president has already claimed that the memo ‘totally vindicates’ him in the Russia probe. Even though the document has nothing to do with the special counsel investigation, this claim may hold more water with Trump’s supporters than any logical presentation of fact. In an era when emotion and personality seem to be the most salient drivers of socio-political ideology, wishing something to be a certain way through verbal repetition has remarkable power.

There is actually an interesting possibility on the flip-side of Trump’s attacks on the Justice Department. By so wantonly antagonizing the institution and its executives, the president is surely sowing much more animosity towards himself in the upper ranks of his own law enforcement bureaucracy, and this self-inflicted conflict would logically seem to invite increased DoJ scrutiny in Trump-related investigations. As if that weren’t enough, in a twisted circle of self-actualization, there is also the possibility that Trump’s hostility has provoked members of the FBI and DoJ into retaliatory leaks of damaging information in the investigations, in which case Trump himself would have brought about the very ‘deep state intelligence plot’ against him that he initially alleged.

For the special counsel and his investigation, however insistent and dramatic the president’s claims, the memo has probably not created so massive an impact. Mueller has been pressing persistently forward, drawing ever closer to the president. Last month former White House Chief Strategist Steve Bannon was subpoenaed by the special counsel for grand jury testimony. Bannon negotiated a private interview instead, and is likely cooperating with the investigation. Mueller seems to be paying special attention to money laundering and financial crimes; he, along with the FBI, are also reportedly investigating a variety of suspicious Russian financial transactions leading up to the election. A new prosecutor specializing in cyber crime recently joined the special counsel team, suggesting that Russian hacking also remains an important branch of the investigation. Perhaps most importantly, Mueller has also indicated that he will probably seek an interview with the president as soon as the coming weeks, and has reportedly begun to negotiate details with Trump’s attorneys. Trump, who after firing Comey last year told reporters he would gladly testify to the special counsel, told reporters recently that it “seems unlikely” that Mueller would even want to interview him, given, as he claims, the lack of evidence of collusion.

This blog was written by Stella Jordan. If you have comments on this blog, contact stella@usresistnews.org.