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Material of Interest to People on the Left 

 NUNES MEMO ‘DELIBERATELY MISLEADING'  
[https://portside.org/node/16446] 

 

 Jerrold Nadler 

NBC News
[https://www.nbcnews.com/politics/donald-trump/democratic-rebuttal-calls-nunes-memo-deliberately-misleading-n844426]


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 _ Until now, we could only really accuse House Republicans of
ignoring the President’s open attempts to block the Russia
investigation. But with the release of the Nunes memo … we can only
conclude that House Republicans are complicit in the effort to help
the President avoid accountability for his actions and the actions of
his campaign _ 

 NBC News, 

 

[moderator: Jerrold Lewis Nadler is an attorney who serves as the
U.S. Representative from New York's 10th congressional district. He is
a member of the Democratic Party and is the Ranking Member of the
Committee on the Judiciary.]

February 3, 2018

Dear Democratic Colleague:

On Friday, House Republicans released the so-called “Nunes memo,”
a set of deeply misleading talking points drafted by the Republican
staff of the House Permanent Select Committee on Intelligence. House
Republicans did so over the objections of the Department of Justice,
the Director of the FBI, the Director of National Intelligence, and
several Senate Republicans, among others.

You may have heard President Trump describe the allegations in the
Nunes memo as a “disgrace.” He thinks “a lot of people should
be ashamed.” President Trump is right, in his way. This
embarrassingly flawed memo is a disgrace. House Republicans should be
ashamed. 

Although I have had the benefit of reading the materials that form the
basis for the Nunes memo, most members have not—including,
reportedly, Chairman Nunes. Accordingly, I am forwarding the legal
analysis below for use by your office based on my review the Nunes
memo and on outside sources.

I. THE FISA COURT FOUND PROBABLE CAUSE TO BELIEVE THAT CARTER PAGE IS
AN AGENT OF A FOREIGN POWER. NOTHING IN THE NUNES MEMO RULES OUT THE
POSSIBILITY THAT CONSIDERABLE EVIDENCE BEYOND THE STEELE DOSSIER
HELPED THE COURT REACH THAT CONCLUSION.

We should not lose sight of a critical and undisputed fact: the
Foreign Intelligence Surveillance Court found probable cause to
believe that Carter Page—a member of the Trump campaign’s foreign
policy team—was an agent of the Russian government.

The Nunes memo states that, “[o]n October 21, 2016, DOJ and FBI
sought and received a FISA probable cause order . . . authorizing
electronic surveillance on Carter Page.” To obtain an order to
conduct surveillance under Title I of the Foreign Intelligence
Surveillance Act, the
government must provide “a statement of the facts and
circumstances” demonstrating probable cause that “the target of
the electronic surveillance is . . . an agent of a foreign power.” 

The central allegation of the Nunes memo is that the government
committed a fraud when it obtained an order to conduct surveillance
of Carter Page, a member of President Trump’s foreign policy team
during the campaign. The memo claims that “[t]he ‘dossier’
compiled by Christopher Steele . . . formed an essential part of the
Carter Page FISA application,” but that the  government failed to
disclose “the role of the DNC, Clinton campaign, or any
party/campaign in funding Steele’s efforts.”

If not for this misrepresentation to the court, the story goes, there
never would have been a Russia investigation. THIS CLAIM IS
DELIBERATELY MISLEADING AND DEEPLY WRONG ON THE LAW. 

First, the Nunes memo appears to concede that the investigation into
the Trump campaign’s ties to the Russian government was well
underway before the government applied for an order to conduct
surveillance of Carter Page. In its final paragraph, the Nunes
memo states: “[t]he Papadopoulos information triggered the opening
of an FBI counterintelligence investigation in late July 2016.” The
statement refers to George Papadopoulos, another member of the Trump
campaign’s foreign policy team. There is no reason to dispute the
Nunes memo’s assertion that the FBI was actively investigating the
Trump campaign months before they approached the court about Carter
Page.

Second, there is already a well-established body of law dealing with
allegations that “material and relevant information was omitted”
from the application to the court—and, in the case of Carter Page,
that law appears to fall almost entirely on the side of the
government. 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.

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?

II. CHRISTOPHER STEELE IS A RECOGNIZED EXPERT ON RUSSIA AND ORGANIZED
CRIME.

Through several acts of willful omission, the Nunes memo alleges the
FISA application is tainted because Christopher Steele “was a
longtime FBI source who was paid over $160,000 by the DNC and the
Clinton campaign . . . to obtain derogatory information on Donald
Trump’s ties to Russia.” The Nunes memo would have us believe the
Russia investigation was a Democratic plot from the outset. That is
simply ridiculous. 

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.

We have no idea if Christopher Steele even knew the source of his
funding when Fusion GPS first hired him to research Donald Trump’s
connections to the Russian government. In fact, Fusion GPS initiated
the project on behalf of the conservative Washington Free Beacon, not
the
DNC. The firm’s task was to provide credible research, and they
hired an expert for the job—a retired British intelligence officer,
experienced in Russian affairs and well-known to the FBI as a useful
source of valuable intelligence in earlier investigations.

Nothing about the source of Steele’s funding or his later opinions
about Donald Trump speak to the credibility of his work, or its
inclusion in the FISA application. The Nunes memo gives us no reason
to doubt the court’s determination of probable cause to believe that
Carter Page was an agent of the Russian government—particularly
given Page’s later admissions to the press about his interactions
with Russian officials.

And nothing about the payment from the DNC is unethical or improper.
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.

III. THE NUNES MEMO PROVIDES NO CREDIBLE BASIS WHATSOEVER FOR REMOVING
ROD ROSENSTEIN AS DEPUTY ATTORNEY GENERAL.

The Nunes memo makes a point of stating that a number of officials,
including Deputy Attorney General, “signed one or more FISA
applications on behalf of DOJ.” Because Attorney General Jeff
Sessions is recused from any investigation related to the 2016
campaigns, Deputy Attorney General Rosenstein directly oversees the
Special Counsel’s investigation. The Deputy Attorney General has
become a target for those attempting to interfere with that
investigation. President Trump has refused to rule out using the
Nunes Memo as pretext for dismissing the DAG. “You figure that one
out,” he said when asked about the Deputy Attorney General
on Friday. 

Whatever one thinks of the merits of the Nunes memo—and it is
clearly not a serious document—the memo provides no basis
whatsoever to justify the removal of Rod Rosenstein as Deputy
Attorney General from his critical and trusted position. The Nunes
memo focuses largely on process that transpired before the Deputy
Attorney General took office. There is no reason to believe that he
reviewed or approved any FISA application for submission to the
court except according to normal process and procedures.

The Nunes memo leaves out a critical point in this area as well. Under
the Foreign Intelligence Surveillance Act, when seeking a renewal of
a surveillance order, the government is required to provide the court
“a statement of the facts concerning all previous applications . .
. involving any of the persons, facilities, or places specified in
the application.” That requirement includes a description of the
intelligence received so far and its value to the underlying
case. Although he was not involved in the initial application, the
Deputy Attorney General could not have signed an application to renew
surveillance on Carter Page if the government was unable to show that
it had already gathered valuable evidence under existing orders and
expected that collection to continue. Under these circumstances, any
decision not to approve the renewal would have appeared to have been
politically motivated.

If the President is looking to fire Mr. Rosenstein, he will have to
look outside the Nunes memo for his pretext.

IV. THE NUNES MEMO SHOWS THAT HOUSE REPUBLICANS ARE NOW PART AND
PARCEL TO AN ORGANIZED EFFORT TO OBSTRUCT THE SPECIAL COUNSEL’S
INVESTIGATION.

On January 24, 2018, the Department of Justice wrote to warn the House
Intelligence Committee that releasing the memo would be
“extraordinarily reckless.” On January 29, the FBI issued a
statement citing “grave concerns” with inaccuracies and omissions
in that document. On January 30, the Majority twice blocked our
request to move the House Judiciary Committee into closed session,
where we would have been free to discuss our own concerns with the
plan to make this information public without context, without
meaningful input from the FBI, and without providing Members with
access to the source materials. On February 1, I wrote to Chairman
Goodlatte asking for him to call the FBI Director and other officials
from the
Department of Justice to brief us on an emergency basis—before the
Nunes memo was made public—but my request was again ignored.

House Republicans do not speak up when President Trump attacks the
press, smears career investigators by name, or demands loyalty from
the leadership of the Department of Justice and the FBI. They have
taken no significant steps to understand how the Russian government
worked to undermine our last election. They show little interest in
protecting our next election from foreign attack—even though
President Trump’s hand-picked intelligence chiefs warn us that the
threat is very real.

Until now, we could only really accuse House Republicans of ignoring
the President’s open attempts to block the Russia investigation.

But with the release of the Nunes memo—a backhanded attempt to cast
doubt on the origins of the Special Counsel’s investigation—we
can only conclude that House Republicans are complicit in the effort
to help the President avoid accountability for his actions and for
the actions of his campaign. 

In the end, who could possibly benefit from the release of this shoddy
work?

Only Donald Trump, who will use these half-truths to further interfere
with the Special Counsel, and Vladimir Putin, who now has a clear
view of how our intelligence community attempted to interrupt his
operations in the United States.

ADDITIONAL BACKGROUND

CHRISTOPHER STEELE served as an intelligence officer with British
intelligence service MI6 from 1987 until his retirement in 2009. From
1990 to 1992, he worked under diplomatic cover
[http://www.telegraph.co.uk/news/2017/01/12/christopher-steelethe-former-british-spy-created-donald-trump/] as
an MI6 agent in the Embassy of the United Kingdom to Russia. By 2006,
Steele headed the Russia Desk at MI6. He remains one of the world’s
foremost experts on Russia—and, in particular, connections between
the Russian government and organized crime.

In September 2015, the conservative Washington Free Beacon
[https://www.politico.com/story/2017/10/27/trump-russia-washington-free-beacon-fusion-gps-244265]
retained the services of Fusion GPS to conduct opposition research on
Donald Trump. When President Trump emerged as the Republican
candidate, the Clinton Campaign and the Democratic National Committee
hired Fusion GPS for the same services. As part of this project,
Christopher Steel produced what became known as the Steele dossier.

CARTER PAGE was known to the United States government for his
involvement with the Russian government
[https://www.nytimes.com/2017/04/04/us/politics/carter-page-trump-russia.html]
long before he joined the Trump campaign. Court documents
[https://www.justsecurity.org/wp-content/uploads/2017/11/PodobnyyComplaint-2.pdf]
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.”

Then-candidate Donald Trump named Page a part of the Trump
campaign’s foreign policy team
[https://www.washingtonpost.com/blogs/post-partisan/wp/2016/03/21/a-transcript-of-donald-trumps-meeting-with-the-washington-post-editorial-board/?utm_term=.a256262250de]
on March 21, 2016. In July 2016, with the explicit approval
[https://www.politico.com/story/2017/03/carter-page-russia-trip-trump-corey-lewandowski-235784]
of the Trump campaign, Page traveled to Moscow to give a speech on
“the future of the world economy” and to meet with Russian
officials.
[https://www.usatoday.com/story/news/2017/03/02/exclusive-two-other-trump-advisers-also-spoke-russian-envoy-during-gop-convention/98648190/]
Despite several public accounts of these meetings, Page would later
deny any contact
[https://www.pbs.org/newshour/politics/reversal-former-trump-campaign-adviser-carter-page-now-says-contact-russia]
with the Russian government. By August 2016—when it had become
apparent that the Russian government was working to undermine the
election
[https://www.nytimes.com/2016/08/30/us/politics/harry-reid-russia-tampering-election-fbi.html]—the
Trump campaign began to distance itself
[https://www.washingtonpost.com/business/economy/trump-advisers-public-comments-ties-to-moscow-stir-unease-in-both-parties/2016/08/05/2e8722fa-5815-11e6-9aee-8075993d73a2_story.html?utm_term=.153613103dc6]from
Carter Page.Later reports show that, in testimony before the House
Intelligence Committee, Page admitted to meeting with Russian
officials and to briefing at least one “senior person”
[https://www.nytimes.com/2017/11/03/us/politics/trump-campaign-page-russian.html]
on the Trump campaign about those meetings.

None of this information relies upon the Steele dossier. The RELEVANT
LEGAL STANDARD for evaluating the FISA application is laid out in
_Franks v.
Delaware_. “[T]here is, of course, a presumption of validity with
respect to the affidavit supporting the search warrant.” 438 U.S.
154, 171.

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