Like many who follow the investigation into the conduct of the Trump campaign and administration, I was relieved on Friday that the so-called Nunes memo had little persuasive value. Then, over the weekend, I noticed people were still somehow persuaded that the memo had found a scandal. It turns out that some pundits have authored better memos in support of partisan distraction than Nunes’s own staffers. The punditry on the right has become more Devin Nunes than even Devin Nunes.
This is despite the memo receiving poor grades from across the political spectrum. Paul Rosenzweig, a former Whitewater investigation staffer, pointed out that the memo’s chronology of events was flawed. The Intercept and Julian Sanchez, no fans of government surveillance, have diagnosed the Nunes memo for what it was: a politically motivated stunt.
Further evidence that this memo should not be taken seriously can be found in the House vote to reauthorize a component of FISA surveillance last month. Nunes and Trey Gowdy joined their colleague on the House Permanent Select Committee on Intelligence, Adam Schiff, in voting to reauthorize the capability. If they had any concerns, let us just say that these were not ‘grave concerns.’
The memo should also be treated with skepticism because it is a four-page summary that cannot be independently verified. It is interesting that many Republicans have suggested the full disclosure of FISA warrants related to the investigation. There is zero chance of this happening as the Justice Department and intelligence community would likely dig in on procedural grounds to fight this step. Additionally, the one individual who could authorize the disclosure is not likely to do so because he is not likely to be portrayed in a favorable light if these files were disclosed. I would support the full release of redacted FISA warrants at this point, however, the hyper partisan punditry is no longer confined to facts so not much good will come of any transparency here.
We cannot know the intent of the memo’s authors for certain, but many have noted that Rod Rosenstein appears to be a target of the accusations. Rosenstein, of course, is the individual responsible for overseeing Robert Mueller’s investigation. Technically, Trump has already tried to fire Mueller as the New York Times has reported. He has pressured his Attorney General and the Deputy Attorney General regarding the investigation as well.
With an ongoing investigation, and especially one involving intelligence activities, we are forced to make probabilistic statements when evaluating the merits of claims and counter claims. With two indictments and two plea deals already to his credit, it does seem that Mueller is pursuing something legitimate that transpired at least on the margins of our most recent presidential election. This is incredibly serious and deserves bipartisan support. At the same time, it seems likely based on a number of press accounts that Mueller is looking into obstruction of justice charges involving members of the administration. Again, the seriousness of this matter cannot be overstated.
When defense attorneys do not like the facts of the case they put the system on trial, and this seems to be what Nunes and many pundits are trying to do today. However, the supposed scandal that they portray is a straw-man version of the bureaucratic reality. If outside documents such as news accounts and politically motivated opposition research were included in FISA authorization, these documents would have been accompanied by much more information that supported these warrants. Warrants are rejected or sent back for additional support on a routine basis. In fact, according to some press accounts, FISA warrant applications in this investigation were sent back. Moreover, the warrants are reviewed and renewed periodically. At this point, there is a likely a significant amount of information that even Devin Nunes does not know about that has been gathered as a result of these warrants.
There are two potential scandals that can and should be analyzed in this mess, and they do not paint the previous administration or the bureaucracy in a good light. However, these scandals will not help the present administration either. First, based on a number of news accounts, it sounds as though the intelligence community was slow to react to myriad reports of Russian involvement in the presidential elections. It took a serious breach of security concerning campaign emails to awaken the IC to the seriousness of what was happening. Our own intercepts, the warnings of allies, and the drunk boastings of a Trump surrogate had all been pointing to problems before the actual crime was known.
The second scandal is the lethargy of the Obama administration and subsequent discussions of classified material, although the IC’s failures likely played a role here as well. The Obama White House, seeking political cover, was stymied by Congressional Republicans. But, the responsibility to act in these matters still falls on the Chief Executive. After the election, it seems likely that a number of political appointees from the previous administration divulged classified information as well. While they may feel justified in this act given what they knew and how the Trump administration was acting, this is still a serious violation of the law. By January 2017, those who were responsible to safeguard the country and its institutions had not done enough when in power and were then racing to catch up with events.
There is still a chance for House Republicans to rediscover their maturity and sense of national service. The first essential step is to stop putting the institutions on trial for political gains. If there is any evidence of wrong doing, the bureaucracy is still functioning well enough to handle those claims. The proper venue is not Fox News and the Wall Street Journal editorial page. Some committees, notably in the Senate, seem to be functioning well and can still be relied upon to produce an honest, bipartisan account.
So, for Devin Nunes and his ilk the best thing to do might be to just shut up and let the adults handle this.