Goitein is co-director of the Liberty & National Security Program at the Brennan Center for Justice; she previously served as counsel to U.S. Senator Russell Feingold.
After weeks of buildup, Rep. Devin Nunes (R-CA), chairman of the House Intelligence Committee and fervent supporter of President Trump, has released a divisive memo about the surveillance of a former adviser to the Trump campaign. After Trump declassified it, Nunes made public a four-page document written by his staff, accusing the Department of Justice and the FBI (a part of the Department of Justice) of illegally spying on the aide in 2016.
According to Rep. Steve King (R-Iowa), the memo reveals official misconduct “worse than Watergate.” King is right about the misconduct, but wrong about whose it is.
Nunes’s allegations have already been extensively reported, and the memo itself offers no surprises. It centers around the so-called “Steele dossier” — a detailed account of contacts between Trump associates and Russian operatives before the 2016 election. The dossier was compiled by Christopher Steele, a former officer for Britain’s intelligence agency, MI6, who also served as a trusted source for the FBI. In this case, though, Steele’s work began as “opposition research” — funded first by an anti-Trump conservative during the primaries, and later by the Clinton campaign and the Democratic National Committee.
According to Nunes’s memo, the Justice Department used this research to support an application for a warrant to conduct surveillance of Trump campaign aide Carter Page without fully informing the court of the funding source or of Steele’s anti-Trump comments. Therein, purportedly, lies the scandal.
As legal experts have pointed out, this allegation, on its own, proves exactly nothing. Informants frequently come with their own agendas and biases. This alone does not bar the government from using the material they provide. Nor is disclosure to the court required as a blanket matter. Context is critical. For example, how could the alleged bias affect the information? Are there reasons to trust the evidence despite its non-neutral source? Most important, does the evidence stand alone, or does it merely supplement other evidence?
House Democrats produced their own counter-memo that supposedly provides some of this context. But both memos contain classified material from Justice Department and FBI documents, and congressional committees cannot legally disclose classified material unless they vote to do so. The intelligence committee’s Republicans, who outnumber the Democrats, decided that Nunes can release classified material about the warrant application — but Democrats cannot.
Playing political games with classified information, sinister as it is, is nothing new. Executive branch officials routinely make selective disclosures in order to put the administration’s spin on news stories or gain support for its policies. Inconvenient facts remain classified. It’s a flagrant abuse of the classification system that happens every day; Congress is just getting in on the act.
Nunes’ skewed disclosure, however, is designed to achieve something far more harmful than media spin. Soon after its release, the White House put out a statement that asserted the memorandum “raises serious concerns about the integrity of decisions made at the highest levels of the Department of Justice and the FBI.” Trump sources have said the President is eager to discredit the FBI and Justice Department so he can re-make them to better suit his undemocratic notions of personal loyalty — dumping Robert Mueller, the special prosecutor heading the FBI’s Russia probe, and Deputy Attorney General Rod Rosenstein, who oversees Mueller’s investigation, in the process.
That would mean the end of the investigation into possible collusion between Russia and the Trump campaign, and perhaps also the end of the investigation into Russian interference with the election. Trump would name a new slate of top brass chosen for their willingness to let him control the Department’s investigations, in stark violation of the norms that for decades have safeguarded the Department from political influence.
This is not a matter of dueling conspiracy theories. Although the FBI has a long history of abusing surveillance powers, it’s unlikely any such abuse occurred here. The Justice Department obtained the warrant for Page under a law that requires a special court, the “FISA Court,” to review the evidence and find probable cause that the target is an agent of a foreign power. While the secrecy of the process could allow all the players to cut corners, FISA judges were unusually tough on the Justice Department in 2016, rejecting or requiring changes to one in every five warrant applications. They would have given particularly close scrutiny to an application targeting a former presidential campaign aide.
On the flip side, the hypothesis that Trump and his congressional allies hope to exercise political control over the Justice Department is more than likely. Trump has demanded loyalty from Department officials and asked who they voted for. He fired FBI Director James Comey on false pretenses, after Comey ignored his requests to drop an investigation into former Trump advisor Michael Flynn. He ordered Mueller’s firing (although he later backed down). He expressed fury at Attorney General Jeff Sessions for recusing himself from the Russia investigation, and pressured him to resign. And he has expressed bewilderment that he can’t direct the investigations conducted by, in his words, the “Trump Department of Justice.” The White House also surreptitiously enlisted Nunes in a previous attempt to discredit intelligence officials (remember the short-lived “unmasking” scandal?).
In short, there is every indication that the Nunes memo was designed to present a misleading picture that can serve as a pretext to end the Mueller investigation. This is simultaneously an abuse of the classification system, a betrayal of the public trust, a violation of longstanding norms shielding the Justice Department from political forces and — quite possibly — attempted obstruction of justice.
If integrity hasn’t fully succumbed to partisanship, Republicans will join Democrats in Congress to condemn this memo and take immediate steps to insulate Mueller from removal. Justice Department and FBI officials, for their part, should hold their ground and resist pressure to resign or ease off investigations. In this improbable and convoluted drama over four pages of innuendo, the rule of law itself could be at stake.