First, we had #ReleaseTheMemo. Now, sit back and wait for #ReleasetheLeaken. Actually, we don’t have to wait at all; the counter-leaks began late yesterday, designed to poke holes in the Devin Nunes memo, which left lots of room for those holes to exist. The Wall Street Journal got the first significant leak, with an anonymous source telling the paper that the main thrust of Nunes’ memo — that the Department of Justice hid Christopher Steele’s political connections — was false:
The memo contends that by not stating the partisan origin of the research, prosecutors obscured a possible political motive for the surveillance of Mr. Page, marking a “troubling breakdown of legal processes.” But the document’s claims are difficult to evaluate without access to the underlying, highly classified law-enforcement material that it was based on. It also doesn’t address or dispute the research collected by Mr. Steele that was included in the warrant application, and it recommends no changes to U.S. intelligence programs. …
The memo is critical of Mr. Steele and notes that prosecutors in their application for the warrant didn’t explicitly state that he was working for a firm funded by Democrats. But the FISA application did disclose Mr. Steele was being paid by a law firm working for a major political party, according to a person familiar with the matter. Redacting the names of U.S. people or organizations who aren’t the subject of an investigation is a common practice in government legal filings, designed to protect privacy.
But a 10-page Democratic memo written to rebut the Republican document says that the F.B.I. was more forthcoming with the surveillance court than the Republicans say. The F.B.I. told the court that the information it received from Mr. Steele was politically motivated, though the agency did not say it was financed by Democrats, according to two people familiar with the Democratic memo. (New York Times)
The court that approved surveillance of a former campaign adviser to President Trump was aware that some of the information underpinning the warrant request was paid for by a political entity, although the application did not specifically name the Democratic National Committee or the Hillary Clinton presidential campaign, according to two U.S. officials familiar with the matter. (Washington Post)
That wasn’t the end of the leaks. The WSJ found multiple sources to argue that another key Nunes contention in the memo twisted key testimony. Nunes argued that Andrew McCabe had testified that the Steele dossier was the key piece of evidence that allowed the DoJ to get the first FISA warrant and three later extensions. That’s not true, sources within the DoJ and Congress told the WSJ’s Byron Tau and Rebecca Ballhaus:
One new element related to purported testimony of Andrew McCabe, a deputy FBI director who just stepped down this past week, about the importance of the Steele dossier in obtaining surveillance warrants on Mr. Page. The memo alleges that Mr. McCabe testified before the House Intelligence Committee in December that “no surveillance warrant would have been sought…without the Steele dossier information.”
Officials in Congress and the Justice Department familiar with Mr. McCabe’s testimony said the memo mischaracterized what he told lawmakers. He was asked what percentage of information in the FISA application was provided by Mr. Steele, and he demurred, saying the FBI didn’t evaluate such applications in such a way. Mr. McCabe was asked if it might have accounted for half of the warrant application, and he said he didn’t know, one person familiar with the matter said.
This looks more like a matter of degree than of simple truth/falsity. Either way, the FBI and DoJ used a political hit job as at least a significant part of their application to conduct domestic surveillance on someone who was at one time connected to a political campaign [see update]. While law enforcement often uses tips from interested or oppositional parties to seek warrants in criminal cases, this is different for a number of reasons. This wasn’t just a drug dealer getting ratted out by a rival. This targeted a presidential campaign, which should have raised the bar on such predicates, even if — as the WSJ’s source contends — the court was fully apprised of the source’s political connections. The risk of getting manipulated into interfering in an election against the current governing party’s opponent should have set off flashing red lights and screaming sirens. For all the sturm und drang about election interference over the last fifteen months, the concern over law enforcement agencies potentially attempting to throw an election seems rather muted.
That’s not to say that the use of the dossier is entirely illegitimate, though. Law enforcement and counterintelligence agencies get lots of tips, some of them just wrong and others maliciously intended to do damage. It’s the FBI’s job to independently corroborate such information to be sure it’s valid before seeking warrants, especially in seeking FISA court warrants to conduct surveillance on otherwise legitimate political operations. Did they find independent corroboration of some of Steele’s claims in the dossier? We don’t actually know the answer to that question … yet. The Nunes memo doesn’t answer that question, and neither do the counterleaks.
This points up a fundamental problem with the release of the Nunes memo, which I pointed out at length yesterday on Twitter while Allahpundit raised similar concerns here. The memo represents an argument from the Republican majority of the House Intelligence Committee, or really just a summary of a partisan argument. It makes a number of factual assertions while failing to provide the evidence to support those assertions. They may all be true, they may all be false, or they all may have some truth to them without providing the full context.
Until we see the FISA warrants themselves and the underlying intel that supported it, we simply can’t tell. Not even releasing the Democrat’s HPSCI minority response will cure the problem, because that will be a partisan argument rather than evidence, too. They’re essentially leaks themselves, which will beget more and more leaks, all of which will do nothing but muddy the waters even further. Each side will believe their own side’s leaks, and we’ll argue out of ignorance over what actually happened forever.
If we want this settled, we need to see the FISA warrants, as lightly redacted as possible, to see why the DoJ approved the surveillance of at least one person connected to a presidential campaign. The president has the authority to declassify it; in fact, Donald Trump has had that authority since the day he took the oath of office. The fact that it has not yet been declassified should raise some questions about the validity of the assertions in the Nunes memo, or at the very least remind everyone that we still actually don’t know what happened. Other than we’ve all issued a call to #ReleasetheLeaken, that is.
Update: Gabriel Malor makes a good point:
It did not target a presidential campaign. Page had left the campaign when the warrant was sought.
— Gabriel Malor (@gabrielmalor) February 3, 2018
True, but the probe began while both Carter Page and George Papadopoulos were still with the campaign, and the point of it was to see whether the campaign colluded with Russian intelligence to hack the DNC. Page didn’t have to still be a part of the campaign for the DoJ and FBI to be probing it. The scope of the investigation was clearly not limited to Page.