At long last, Congressional Republicans have released the memo that the FBI didn’t want you to see (if you didn’t get the memo on Memogate, these pieces should help you get up to speed). Now that we’ve seen the actual text, here’s the one-sentence upshot: Even if we stipulate that all of the memo’s factual assertions are true, the document does nothing to discredit the validity of the Mueller investigation — but does quite a bit to discredit the GOP’s own attacks on that probe.
Here are six more concrete takeaways:
1) It’s possible that Carter Page was improperly surveilled by the U.S. government.
In late October 2016, the FBI and DOJ obtained a probable cause order from a FISA (Foreign Intelligence Surveillance Act) court, allowing them to electronically surveil Carter Page, a voluntary adviser to the Trump campaign (and charmingly bizarre human being). The memo claims that the Christopher Steele dossier — research by an ex-MI6 intelligence officer, which was funded, in part, by Hillary Clinton’s campaign — “formed an essential part” of the FBI’s application for that order. And yet, the Bureau did not inform the court of Clinton’s role in financing the collection of this information anywhere in its application.
This, by itself, is not necessarily damning. A lot depends on the meaning of the word “essential.” If the FBI had corroborating evidence for the Steele dossier’s assertions — or, more precisely, for those assertions most relevant to Carter Page — then the source of Steele’s financing would seem irrelevant.
The memo’s more compelling charge is that the FBI did present corroborating evidence for the Steele dossier’s claims — but that said evidence consisted primarily of a Yahoo News article that was based on information leaked by Christopher Steele. If this is true — and if the Steele dossier and Yahoo News article really did constitute the entirety of the FBI’s case — then it appears that the Bureau misled the FISA court, and an American citizen was unfairly subjected to state surveillance.
2) But there’s little reason to believe that the memo’s factual assertions are true.
Democrats on the House Intelligence Committee dispute the memo’s core contentions about how the FBI secured its warrant to spy on Page. Specifically, they contend that the Steele dossier was not the sole source of evidence that the Bureau presented to the FISA court — and, even more critically, that it is “not accurate” to say that the FBI did not make the court “aware that there was a likely political motivation behind who was funding Steele’s work.”
The FBI, for its part, has expressed “grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.” And, even as they defend their memo’s release on grounds of “transparency,” Republicans on the Intelligence Committee have barred their Democratic counterparts from releasing an alternative memo based on the same source materials.
But the biggest reason to take the memo’s claims with several spoonfuls of salt may be this: It wildly misrepresents publicly available facts.
First, as canine Twitter lawyer @nycsouthpaw notes, the memo is deliberately misleading in its representation of the Yahoo News article that the FBI cited in its application to the FISA court:
Second, the memo states, as a fact, that FBI Director James Comey testified to Congress in June 2017 that the Steele dossier was “salacious and unverified.” But as the conservative blog Red State (of all publications) notes, Comey never said any such thing. While the FBI director did call certain material (i.e. the pee tape stuff) in the dossier “salacious and unverified,” here’s what he had to say about whether the bureau had corroborated the criminal allegations in Steele’s research.
BURR: In the public domain is this question of the “Steele dossier,” a document that has been around out in for over a year. I’m not sure when the FBI first took possession of it, but the media had it before you had it and we had it. At the time of your departure from the FBI, was the FBI able to confirm any criminal allegations contained in the Steele document?
COMEY: Mr. Chairman, I don’t think that’s a question I can answer in an open setting because it goes into the details of the investigation.
If Congressional Republicans are willing to lie about the public record, there’s little reason to trust that they are accurately conveying the substance of classified material.
3) The memo does not validate the claims that Republicans said it would.
Before the memo was made public, Republicans suggested that the information contained within it exposed a scandal that was “worse the Watergate,” a threat to “rule of law” in the United States, and “very, very sad for democracy.” More specifically, they claimed that it exposed the special counsel’s investigation into the Trump campaign’s Russia ties as a partisan witch hunt.
But the memo does nothing to advance any of those claims — which might be why, on the eve of its release, the White House reportedly worried that it would land as a dud.
To the extent the memo exposes anything more important than a potential violation of Carter Page’s privacy, it is the ease with which the FBI can secure the right to spy on American citizens. But we already knew this. As of 2013, the FISA court had rejected only 0.03 percent of all surveillance requests sought by the Executive branch. And anyhow, the GOP has no genuine concern about the FBI’s ability to spy on ordinary Americans — even as they were assembling a memo which suggests the FISA court can be abused, House Republicans voted to reauthorize its operations without enacting any significant reforms.
The insinuation that Republicans wish to make is that Clinton sympathizers within the FBI pushed for the surveillance of Page as a means to obtain information useful to the Clinton campaign, on the eve of an election. But there is no evidence for that incendiary claim in the memo. And the reality of the FBI’s conduct in the run-up to the election — reviving an investigation into Clinton, while leaking word that there was “no clear link” between the Trump campaign and Russia — makes the idea that the Bureau was working to elect the Democratic nominee facially absurd.
4) The memo confirms that the Steele dossier was not the basis for the broader investigation into Trump and Russia.
But the memo doesn’t just fail to discredit the investigation into the Trump campaign — it actually confirms its validity. The core of the GOP’s argument against the Mueller probe has been that it was based on unsubstantiated allegations gathered by a Clinton operative. The memo suggests this might be true of the Carter Page warrant — but not of the broader investigation.
5) This hardly amounts to a damning indictment of Rod Rosenstein — which was, arguably, its animating purpose.
Deputy Attorney General Rod Rosenstein has overseen the investigation into the Trump campaign’s Russia ties ever since Attorney General Jeff Sessions recused himself from the probe. It was Rosenstein who appointed the special counsel; Rosenstein who has authority over all of Mueller’s requests — and thus, has the power to expedite or impede his efforts; and Rosenstein who will decide whether to pursue any charges that Mueller might recommend at the investigation’s end — assuming that Rosenstein isn’t fired before then.
Before the memo’s release, some Republicans strongly suggested that its contents would give Trump cause to treat the deputy attorney general to his signature catchphrase. And, by all appearances, the president is eager to do so. Earlier this week, we learned that Trump asked Rosenstein, in December, whether he was “on my team.” The course of the Mueller probe since then has ostensibly given the president an answer — and not the one he was looking for.
The only thing preventing Trump from firing Rosenstein is the sense that it would be politically disadvantageous to do so. The promise of the memo, then, was that it would indict the deputy attorney general’s conduct to such a degree that (if one pretended to forget the countless times that Trump has said, publicly, that the Justice Department’s first loyalty should be to him and not the law) a nonpartisan observer could see the case for his dismissal.
But the memo provides no such indictment.
6) Trump could get what he wants out of this memo, anyway (because facts and reason don’t necessarily matter).
Hatch’s position here is, ostensibly: If a baseless smear campaign is mounted against a law enforcement official with the aim of removing him from an active investigation, then the prudent response is to give the smear campaign exactly what it wants.
If this is the line that an Establishment Republican elder statesman give, then it’s hard to see what stops Trump from making a frontal assault on the Mueller investigation.