Adam Schiff has found himself under belated fire for his response to Devin Nunes’ memo in February 2018, but the House Intelligence chair shouldn’t be alone. When then-chair Nunes wrote that the FBI had abused the FISA warrant process and illegally targeted an American citizen for surveillance, Schiff insisted that he knew that the warrants were legitimate and the FBI had acted in full accordance with the law and procedure. Time and Inspector General Michael Horowitz proved Nunes correct and Schiff wrong, but not just Schiff.
Paul Sperry reminds readers at Real Clear Investigations that Schiff wasn’t the only House Democrat writing memo responses to Nunes. House Judiciary Chair wrote a memo to fellow Democrats accusing Carter Page of being “more likely than not, an agent of a foreign power” and of being part of the Russian intelligence operation targeting the 2016 election. Nadler also asserted that the FBI did nothing wrong in seeking the FISA warrants targeting him (via Instapundit):
Nadler made the accusation in a letter distributed on Capitol Hill in early 2018. In the same document, he also defended the FBI for obtaining a highly invasive FISA warrant to wiretap the Trump aide, Carter Page. The watchdog now concludes that this warrant, renewed three times, was obtained under false pretenses.
The Democratic leader — who’s expected to argue the impeachment case before the Senate next month — dismissed as “a conspiracy theory” the president’s characterization of the FBI spying as an “abuse” of the government’s surveillance powers. …
His letter, which was leaked to the media and assisted a campaign to discredit the GOP-led report, asserted that Page conspired with the Kremlin during the 2016 election, and that the FBI was justified in spying on him.
“Carter Page was, more likely than not, an agent of a foreign power,” Nadler claimed. “The Russian government waged a massive campaign to discredit our election. Carter Page appears to have played a role in that effort.”
The letter is a piece of work, and one has to wonder whether it’s actionable on Page’s part. Would the Constitution’s Speech and Debate clause cover something like this, which wasn’t actually part of a floor speech?
So, to be clear: Carter Page was, more likely than not, an agent of a foreign power. The Department of Justice thought so. A federal judge agreed. That consensus, supported by the facts, forms the basis for the warrant issued by the FISA court. The Russian government waged a massive campaign to discredit our election. Carter Page appears to have played a role in that effort. The FBI has a responsibility to follow these facts where they lead. The Nunes memo would have us sweep this all under the rug. And for what, exactly? …
Carter Page was known to the United States government for his involvement with the Russian government long before he joined the Trump campaign. Court documents show that Russian intelligence operatives attempted to recruit Page in 2013. One spy thought that Page was “an idiot” who wants to “rise up” and “earn lots of money.”
So to be really clear: Nadler libeled Page in this paragraph, in a moral if not legal sense. As Horowitz discovered — and as the FBI knew by the time of Nadler’s letter — Page wasn’t working for the Russians, he was working with the CIA against the Russians. Moreover, Nadler had access to information that should have made clear that none of this was true. Nunes certainly did, which is why he warned that the FISA warrants were false and that Page was illegally targeted. After all, Nadler wrote this in direct response to Nunes’ memo, which at least shows reckless disregard for the truth. Under those circumstances, it would not be a stretch to establish actual malice even if Page qualified as a public person, which might be a stretch in itself.
Besides that, everything else Nadler wrote in this February 2018 memo has worn just as well as his public assessment of Page as a traitor. Nadler insisted that the FBI had not done anything wrong in its FISA applications, let alone the kind of misconduct Nunes alleged:
In Franks v. Delaware (1978), the U.S. Supreme Court held that a court may only void a search warrant if the government “knowingly and intentionally, or with reckless disregard for the truth,” included false information or excluded true information that was or would have been critical to the court’s determination of probable cause. The Nunes memo alleges nothing that would even come close to meeting this standard. Indeed, we have every indication that the government made its application to the court in good faith.
Emphasis in the not-aged-well original. As Horowitz reports, the FBI committed 17 major omissions and misrepresentations in the FISA warrant applications, including one blatant manipulation of evidence to sustain the warrant application. That resulted in a criminal referral from the Horowitz probe and should have been of oversight interest to the then-ranking member of Judiciary. The Horowitz report exposed the opposite of “good faith” by the FBI in this process.
By comparison, Nadler’s thoughts on Christopher Steele count as comic relief:
The Nunes memo does not show that the government relied solely, or even substantially, on the information provided to the FBI by Christopher Steele when it made its application to the court. It does not show that Steele’s work was compromised by the source of funding. It does not show that Fusion GPS—the firm that hired Steele to do this work—was any more or less diligent when it worked for Democratic clients than when it worked for Republicans. And, amazingly, the Nunes memo does not provide a single shred of evidence that any aspect of the Steele dossier is false or inaccurate in any way. …
Christopher Steele is one of the world’s leading experts on Russian organized crime. His job was to uncover the facts. Many feared during the election that the Trump campaign had been compromised by the Russian government. Two guilty pleas and two indictments later, those fears seem well justified.
Actually, as Horowitz documents in his report, the FBI knew damned well by February 2018 that the Steele dossier was at the least inaccurate in many ways, if not outright false. They had already learned in between warrant renewals that Steele had misstated what one of his Russian subsources had told him, and they knew that the rest of his claims were not only uncorroborated but unlikely to be true. They never told the court that, however, which again should have been of interest to the ranking member of Judiciary, which has specific oversight over the FBI and the courts.
This matters for another reason than just accountability in the Russian-collusion nonsense, Sperry writes. House Democrats are pushing an impeachment crafted by Nadler and Schiff, the two top Democrats who had access to that information, and are pursuing it largely on their credibility. Republicans are signaling that they plan to make an issue of that as the vote looms:
Capitol Hill sources say the inspector general’s scathing report uncovering FBI misconduct undercuts Nadler’s credibility as a prosecutor for the impeachment case.
“The chairman has no credibility left,” said a Republican staffer on the judiciary committee, who spoke on the condition of anonymity. “He is not an honest broker.”
Sources complained that by publicly defending the FBI against charges of egregious surveillance abuses, Nadler effectively gave federal officials a congressional blessing to illegally spy on American citizens.
If Senate Democrats demand that the Republicans call witnesses in a Senate trial, then at the top of the list should be the names Adam Schiff and Jerrold Nadler. In the meantime, let’s see how many media outlets put Nadler on the hot seat over his own Nunes rebuttal memo.