Yesterday, while much of the social media spotlight was divided between the ongoing fallout from the Florida school shooting and the Olympics, Congressman Adam Schiff released the Democratic memo (or “Demo” as the Lawfare blog is calling it) in response to the Nunes memo. Politico has the entire, rather heavily redacted ten pages of it here should you care to wade through it for yourself. So how was it received? According to Schiff it effectively negates all the points that Nunes was trying to make. According to the President, it was a total bust.
The Democrat memo response on government surveillance abuses is a total political and legal BUST. Just confirms all of the terrible things that were done. SO ILLEGAL!
— Donald J. Trump (@realDonaldTrump) February 24, 2018
So which side is closer on this one? You can pick almost any random site on the right or left this weekend and get two completely different answers. Politico obviously sees it as at least a partial victory for the Democrats seeking to defend the investigation into the 2016 Trump campaign.
The document’s release opens a new partisan front in a battle that has consumed the House Intelligence Committee and has all but derailed its efforts to probe Russian interference in the 2016 presidential election.
The FBI team investigating the 2016 Trump campaign’s contacts with Russians had already opened inquiries into multiple people connected to the campaign when it received a controversial dossier alleging illicit ties between then-candidate Trump and the Kremlin, a Democratic memo released by the House Intelligence Committee revealed Saturday.
Although there were a number of troubling facts raised in the Nunes memo, one of the biggest was the use of the Steele dossier to obtain a FISA warrant to surveil Carter Page, which the FBI allegedly requested without telling the FISA judge that it was a biased political document created by someone hoping to bring down Trump’s campaign and paid for by the Democrats. The “vindication” coming from the Demo is supposed to be found in the revelation that the FBI already had already begun multiple inquiries into people associated with the Trump campaign before they got hold of the dossier.
To understand this a bit more, it’s worth taking a look at that Lawfare post I linked above. Quinta Jurecic and Benjamin Wittes (both editors at Lawfare) make a spirited effort to defend Schiff in terms of what the Demo proves or at least suggests. (They being by claiming that if Schiff’s claims are true, “they rather lay waste to the original Nunes document.” Of course, that’s still a big “if” to chew on.) But if you can wade through that aspect of their analysis they manage to hone in on the key parts of the Demo which merit examination.
One of the first “smoking gun” issues they bring up is the question of unmasking. Nunes alleges that the largely bogus dossier was developed and paid for by sources hostile to the Trump campaign, casting doubt on its legitimacy, but the FBI hid that information from the FISA judge. Lawfare argues that masking the identies of Americans involved in a covert investigation of overseas agents is standard practice and precisely the sort of thing Nunes was complaining about originally.
On the merits, the Demo also seems compelling in its claim that the FISA application, in fact, communicated reasonably to the court the information about Steele and his funders that the government had in its possession. The committee minority quotes the relevant section of the initial application to surveil Page:
[Steele] was approached by an identified U.S. Person, who indicated to Source #1 [Steele] that a U.S.-based law firm had hired the identified U.S. Person to conduct research regarding Candidate #1’s ties to Russia. (The identified U.S. Person and Source #1 have a long-standing business relationship.) The identified U.S. person hired Source #1 to conduct this research. The identified U.S. Person never advised Source #1 as to the motivation behind the research into Candidate #1’s ties to Russia. The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate #1’s campaign” (emphasis in original).
We’ll circle back to that in a moment, but I would like you to take note of the fact that the name [Steele] is in [brackets] in the excerpt. He wasn’t named. The other people “named” are listed as U.S. Person, Source #1, Candidate #1, etc.
The second issue comes with the timing of the FISA request and the receipt of the dossier. Lawfare points out that the dossier couldn’t have been the genesis of the investigation because the FBI was already poking around into the affairs of Page and others before they even received it.
[T]he clear implication here is that by September 2016, the bureau had some number of distinct open counterintelligence probes related to L’Affaire Russe, each tied to a different individual. The question, of course, is who those individuals might be. Notably, this section of the memo includes a citation to an endnote, which reads: “Under the Special Counsel’s direction, [Michael] Flynn and [George] Papadopoulos have both pleaded guilty to lying to federal investigators and are cooperating with the Special Counsel’s investigation, while Manafort and his long-time aide, former Trump deputy campaign manager Rick Gates, have been indicted on multiple counts and are awaiting trial. . . .”
Both of these claims have significant problems. Let’s tackle them in reverse order.
First, you’re claiming that the FBI having already started investigating Trump campaign personnel before getting the dossier somehow vindicates them. But you’re failing to address the question of why the FBI was already investigating the Trump campaign to begin with. This is one of the great, unanswered questions surrounding this entire debacle.
Was this a case of the FBI following up on leads about “some American” (Carter Page) having contact with the Russians who then just happened to turn out to have been working for the Trump campaign? Or were they looking into members of the Trump campaign leading them to discover that Page was talking to the Russians? The difference between those two scenarios is staggering in terms of what Nunes has alleged. And the fact that Schiff is saying that the FBI was already looking into multiple people on the Trump campaign regarding alleged Russian ties suggests that Page didn’t turn up as a random hit.
The second issue deals with the unmasking mentioned above. Is it plausible that the FBI didn’t “hide” the sources or funding behind the dossier when requesting the FISA warrant? Schiff seems to be arguing that, okay, maybe the FBI didn’t actually name Steele, Clinton or the other individuals, but the FISA judge should have been able to figure it out from the footnotes and other hints. Lawfare goes so far as to say, “even though the FISA application didn’t identify the DNC and the Clinton campaign by name, it made very clear that Steele’s research was politically motivated.” Really? I understand they’re not supposed to be releasing the names of American citizens involved in such investigations on the record, but they couldn’t even tell the FISA judge when seeking a warrant?
As I said at the top, the redacted info is probably hiding critical answers to some of these questions. But saying that this somehow destroys the premise of what Nunes is claiming seems absurd. If you read it in the most favorable way possible in terms of defending the honor of the FBI you could possibly reach that conclusion. But without the answers to the two main questions I raised here, Schiff could just as easily have sunk his own argument.