Nunes, President Donald Trump and his most ardent apologists, Fox News and others have successfully whipped up the anti-government frenzy over this issue. They assert the FBI and Justice were so motivated to help Hillary Clinton that they launched an investigation on hapless Carter Page using the now-infamous Steele memorandum as the major supporting documentation. Specifically, they argue the following:
The Steele intelligence was unverified and salacious—thus, it never should have been submitted as part of the application and certainly should not have been the primary documentary evidence in support of surveilling Page
Had the federal government notified the Court that the dossier was funded by the Democrats and by Clinton, the initial Judge and the three following Judges who granted the renewals would have rejected the applications or at the very minimum, would at least have had the necessary information to make its rulings
In essence, the Republican memo and those supporting it argue that the FBI and DOJ essentially used "discredited" rumors in conspiring against Page (and therefore Trump) and in doing so, deliberately withheld this critical information from the Court, launching the now-infamous "witch hunt
From the Democrats' competing memorandum written by Congressman Adam Schiff, it now appears some of the claims made by the Nunes memo are not correct. According to the documentation, we now know that the investigation began before the FBI received the dossier, that there were possibly four ongoing investigations being launched by the FBI at the time of the FISA application, that the FBI had spoken to Page in March of 2016, that Page had engaged in alleged activity that brought on the federal government's concern separate from the dossier. There are arguments proffered by the Trump supporters that contradict these positions outlined in the Schiff memo. This column, however, will not address any of these issues in particular. Instead, our focus is upon what the government might have communicated to the FISA court.
Trump and loyalists insist that under no circumstance should the federal government be working with a political party and candidate to get dirt on any political opponent. They demand that the DOJ-FBI did just that in "spying" on Carter Page and the Donald Trump campaign.
The Nunes assault on the surveillance procedure apparently was not just designed to cut into the FISA warrant and related evidence but to make a larger point-- you can't trust the Mueller investigation. It is no small wonder that after the Nunes memo was released, President Trump claimed that it vindicated him and that it essentially proved the Russia probe was a hoax and a witch hunt.
In making his case to the American people, Nunes tried to discredit the FISA application, thus, wrote the Majority's memo. While Congressman Trey Gowdy did review the underlying documents, Nunes did not.
In pertinent part, his memo said, " Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele's efforts, even though the political origins of the Steele dossier were then known to senior DOJ and FBI officials." (our emphasis)
In summary, the memo claims the initial application and renewals did not disclose or reference the Clinton-DNC role or that of any party/campaign in funding Steele's efforts, even though the DOJ and FBI senior officials knew the political origins.
If those allegations were true, that the FBI and DOJ actually knew the DNC and Clinton's funded the dossier and that the agencies intentionally hid this information from the Court, arguably, these facts could seriously cut into the credibility of the surveillance. Worse, they could cast a long legitimate cloud over the entire proceedings against Trump.
But, what if those Nunes's allegations, pushed out by the right-wing media, Republicans in Congress and President Trump, are not supported by fact? What if Nunes made these claims but has not produced any evidence to support his most critical allegations? These inquiries become so much more significant in light of the obvious desire by some to impugn all investigations against Trump.
Therefore, the ultimate question arises—specifically, at the time the FISA application was first presented and then renewed, what did the senior officials of the FBI and the DOJ know regarding who paid for the controversial Steele documents?
The truth? We don't really know. The public record appears to be very unclear as to what the government actually knew and when did it know it?
Yet, Nunes made very explosive allegations to the court of public opinion, that the senior officials of the FBI and DOJ did have active knowledge of the source of the payments and that they concealed what they actually knew.
Let's dig deeper and explore:
As mentioned, Congressman Nunes made the allegations that the officials knew. As a counter-attack, Schiff told reporters that "it is not accurate to say the FBI didn't make the FISA court aware that there was a political motivation behind those who were funding Christopher Steele's work".
As proof, in his memo, Schiff cited the actual words used in the Page FISA application, "The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate #1's campaign.
So, focusing deeper by putting the microscope on the precise claim and defense, again, Nunes's memo stated:
" Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele's efforts, even though the political origins of the Steele dossier were then known to senior DOJ and FBI officials."
In making this public official declaration to Congress and to the nation, Nunes made these remarks on his own without any documentation. He did not cite actual language in the application. Nor did he cite Congressional hearings or anything authority as his source. In essence, Nunes derogated the FBI and DOJ without any legal documentation, whatsoever, and has asked America to simply take his word.
In reality, do we know for certain, as Nunes so vociferously argues, that the FISA application failed to refer to any party or campaign funding Steele's efforts AND that the DOJ and FBI officials knew the source of the funding?
From the text of his memo, no, we don't know anything. There is no evidence presented by him.
Technically, Nunes is correct in that the application did not refer to Clinton or the DNC. However, while Nunes made bold accusations and nothing more, the Schiff memo did somewhat addressed the "any party or campaign funding" question when he quoted the FISA application. The application says that the FBI speculates that the information was being used to discredit the (Trump) campaign.
In fairness, from the Schiff memo's citing the underlying application, do we know from the Schiff's memo who funded the dossier? Or, do we know reasons for the funding? From the application alone, no. Again, all we know is1. The FBI speculates 2. That Simpson was likely 3. looking for information 4. that could be used to discredit Candidate #1's campaign
Thus, Schiff, by implication, in citing this footnote, tells us that the FBI at the time it presented the application, might not have known for certain why the dossier was created but, again, the organization speculated that the person (Simpson of Fusion GPS) hiring Steele was "likely" looking for discrediting information to use against Trump.
While the Democrats and others are claiming that the application discloses that political opposition paid for the dossier, that document does not. All the application essentially states on this point is the FBI is speculating that Simpson is likely trying to discredit Trump's campaign. The application does not refer to Clinton or the DNC nor funding by political opposition.
We can only do our own guessing as to why the FBI speculated about why Simpson would likely be using the dossier. This uncertainty raises another issue that I personally have not heard discussed anywhere—did the DOJ and the FBI even know who was making the original payment? Nunes boldly claims the government agency senior officials did know but he provides not a scintilla of evidence in support.
All we know, is what is in the public record and the only public record is the application, which claims that a law firm hired Simpson and that the FBI speculates as to his motivation. That is it.
Was the DNC and DOJ hiding what they knew? Who knows? But, surely Nunes does not tell us how he knows what he claims he knows.
Did the Schiff memo affirmatively state that the funding source was a political operation or entity or person who wanted to discredit the Trump campaign? No, the memo did not. The Schiff memo makes no reference to whom the funding source might be. It only cites what the FBI speculates as to why Simpson likely was motivated. Again, there is no reference to the DNC or the Clinton campaign or anybody else, for that matter.
From the application, we can speculate that the law firm or any other person or entity paying for the dossier was doing so for opposition research, therefore, he or they opposed Trump for political reasons. This is a fair inference, but pure speculation, based on the facts we actually know.Here is how David French of the National Review frames the issue:
While the Schiff memo only hints at important evidence about the dossier, it does do something important that the Nunes memo does not. It provides the exact quote of the footnote in which the DOJ disclosed the source of Steele's funding. According to the Schiff memo, the footnote disclosed that Steele was approached by an identified U.S. Person [Fusion GPS founder Glenn Simpson], 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 [i.e., Trump's] ties to Russia. (The identified U.S. Person and Source #1 have a longstanding 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 Schiff memo, p. 5]
There are those who argue that this disclosure is insufficient. I disagree. "Information that could be used to discredit" a campaign is basically the very definition of opposition research. It clearly communicates bias.
WHO KNEW WHAT AND WHEN?
As absurd as it might sound, based upon the publicly available information, there is the possibility that the DOJ is suggesting that the FBI actually did not know at any time during the application process who actually was the source of the payment.
Again, if the FBI knew the source, why did the DOJ state that the intelligence organization "speculates". If Nunes and the Republican Congress had presented in their memo the underlying facts about their allegation imputing the FBI and DOJ's alleged knowledge that it was the Clintons and the FBI, then we could discuss absolute facts. But, they did not. Therefore, Nunes and the Republicans really don't know the facts or they are not disclosing what they know and they should never have made the allegations in a congressional document in the first place.
Which raises another question—when did the public know that the source of the funding appeared to be the DNC and the Clinton campaign?
Apparently, that information only became available last fall.
On October 25, the Washington Post broke the story, "Clinton campaign, DNC paid for research that led to Russia Dossier". According to the Post, the source of the payment information was revealed as a result of a lawsuit filed by Congress.
"Some of the details are included in a Tuesday letter sent by Perkins Coie to a lawyer representing Fusion GPS, telling the research firm that it was released from a ¬client-confidentiality obligation. The letter was prompted by a legal fight over a subpoena for Fusion GPS's bank records."
Thus, the public only knew this information after Nunes demanded it and only after the attorney representing the DNC and the Clinton campaign released Fusion GPS from the confidentiality agreement, allowing Simpson to disclose the information.
Congressional Republicans have tried to force Fusion GPS to identify the Democrat or group behind Steele's work, but the firm has said that it will not do so, citing confidentiality agreements with its clients.
Last week, Fusion GPS executives invoked their constitutional right not to answer questions from the House Intelligence Committee. The firm's founder, Glenn Simpson, had previously given a 10-hour interview to the Senate Judiciary Committee.
Over objections from Democrats, the Republican leader of the House Intelligence Committee, Rep. Devin Nunes (Calif.), subpoenaed Fusion GPS's bank records to try to identify the mystery client.
Fusion GPS has been fighting the release of its bank records. A judge on Tuesday extended a deadline for Fusion GPS's bank to respond to the subpoena until Friday while the company attempts to negotiate a resolution with Nunes
Thus, if Nunes only found out the source in late 2017, how does he know if and when the FBI uncovered the same facts especially given the confidentiality agreement in place?
Nunes needs to disclose what he knows and when did he know it.
Separate from the issue of the FBI's and the DOJ's actual knowledge, to borrow a famous made popular by Hillary Clinton, "what difference does it make"? Indeed, it matters if the FBI and DOJ deceived and it also matters if Congressman Nunes deceived America with his memorandum and his statements in support thereof.
But, for the purpose of the FBI and the DOJ being accurate and complete with the information provided to the court, did any possible lack of disclosure matter?
Surely we want the Court to have all relevant and material information to help it make its decisions. Keep in mind, the Court makes the ultimate decision whether to grant the warrant, not the DOJ or the FBI. The Court in reviewing the application has the right and the duty to review the document before it and if there is any uncertainty, it should ask the right questions, until satisfied with the information provided.
This does not mean that any prosecutor or investigative body does not have an affirmative duty to disclose what it knows to the extent that law allows or demands. But, it is also wrong to assume that the Court was misled, as in this case, Nunes appears to be claiming. He appears to be insinuating that four Judges, all Republican appointees, either failed to review the record or failed to ask questions as to the relevant identities, biases and motivations of the parties funding the dossier. He has failed to acknowledge that the application reveals, although it is blacked out, other supporting reasons for the application and possible warrant issuance.
The only way that the House Intelligence Committee would know for certain what actually transpired would be for it to obtain the full record including any transcripts of any oral statements made to the court or by the court. Instead, we have a Congressman and a congressional body making striking and defamatory allegations against the FBI and the DOJ, without their completely reviewing the entire record. We have "state run" media propagating these allegations without digging deeper into the details. We have the President promoting this misinformation against his own agencies to protect himself and others.
Just as it is critical that the prosecution not overstate its case or mislead, it is imperative that those defending the President or others caught up in this controversy, not make claims that are politically based but not grounded in logic and law. Hopefully, we will soon get the details and that the House intelligence will be smart enough to make those facts as part of the record and not part of political hysteria created to present confusion.
Facts do matter. Perhaps now more than ever before.