What to make of the Nunes Memo?

The Nunes Memo has been released, and can be found here.  The need for the memo and the political equivalent of he said/she said regarding the memo are a sad commentary on the state of current political affairs.  Without the underlying documentation available to verify or refute the allegations raised all an outside observer can do by way of analysis is look for allegations that can be verified/refuted via the underlying documentation and form dual opinions based on the documentation verifying or not. With that limitation, as well as most people having already made up their minds, this post focuses on why the memo – assuming the allegations can be verified – is important and what issues the memo exposes outside of the Mueller investigation.

Notwithstanding the reprieved motivation in authoring and releasing the memo, if the underlying documentation supports the allegations raised the memo should have been generated and released.  Regardless of ideology, everyone should be able to agree on three issues:

Foreign involvement, if any, in the election isn’t good.

A citizen’s civil rights should not be violated in an investigation.

Law enforcement investigations should be apolitical.

The FISA Process and Civil Rights

The memo’s first allegation raises concern as to the potential civil rights violations.  The memo states:

1) The “dossier” compiled by Christopher Steele (Steele dossier) on behalf of the Democratic National Committee (DNC) and the Hillary Clinton campaign formed an essential part of the Carter Page FISA application. Steele was a longtime FBI source who was paid over $160,000 by the DNC and Clinton campaign, via the law firm Perkins Coie and research firm Fusion GPS, to obtain derogatory information on Donald Trump’s ties to Russia.

1. a) 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 and FBI officials.

This looks like the government withholding relevant information to the FISA court.  Although not quite a Brady doctrine scenario, the withheld information meets the criteria for Brady and is in the setting of an adverse governmental action directed at a citizen.  As such, it’s troubling that the information was not disclosed to the FISA court.

The government often withholds information when taking action detrimental to citizens.  I see it all the time in my Social Security practice – the government cherry picks evidence from a prior application and doesn’t associate all the evidence from the prior application into the file.  Or they conduct a cooperative disability investigation and will not tender the report.  The adverse decision denying benefits is made based in part on the cherry picked information or the investigation.  The remedy is that the Administrative Law Judge hearing the case allows for argumentation on the issue and orders the withheld information tendered or stricken as appropriate.  The public can be confident in the process because a record of the proceeding is made and the appropriateness/inappropriateness of the issue is raised and determined.

This safeguard is absent in FISA situations because FISA issues are, by statute, ex parte.  With the adversarial safeguard absent it’s not possible to ascertain if the target citizen’s civil rights are being protected.  To that end, the memo exposes potential abuse which raises a serious concern with the FISA process rather than the Mueller investigation.

Is the Investigation Apolitical?

Nothing about allegations 1b through 4 are particularly striking, but then there’s allegation five.  This allegation reads:

 5) The Page FISA application also mentions information regarding fellow Trump campaign advisor George Papadopoulos, but there is no evidence of any cooperation or conspiracy between Page and Papadopoulos. The Papadopoulos information triggered the opening of an FBI counterintelligence investigation in late July 2016 by FBI agent Pete Strzok. Strzok was reassigned by the Special Counsel’s Office to FBI Human Resources for improper text messages with his mistress, FBI Attorney Lisa Page (no known relation to Carter Page), where they both demonstrated a clear bias against Trump and in favor of Clinton, whom Strzok had also investigated. The Strzok/Lisa Page texts also reflect extensive discussions about the investigation, orchestrating leaks to the media, and include a meeting with Deputy Director McCabe to discuss an “insurance” policy against President Trump’s election.

Wow.

What’s striking about this is the allegation is easily verified (or not).  Simply follow the text message trail.  Regardless of who is being investigated having a political slant to a criminal investigation is a threat to the integrity of the legal system.  This goes even beyond bias.  Texts discussing, “orchestrating leaks to the media” treads into conspiracy to commit criminal activity.  The allegation goes even further with “include a meeting with Deputy Director McCabe to discuss an “insurance” policy against President Trump’s election.”  If that verifies, then not only are those named treading into criminal activity, but also they are attempting to influence the election – the same issue they are tasked with investigating.

Does this mean that the investigating they did was fabricated or otherwise unreliable on the facts? No.  It does, however, raise questions as to whether the investigation was looking at what occurred or looking to inflict harm to President Trump.  It raises questions on was exculpatory evidence pursued?  Was evidence that casts doubt on the veracity of information given equal weight as evidence that was not favorable towards President Trump?

The memo doesn’t prove fire, but it does show a whole bunch of smoke.