The Real Damage of the Nunes Memo

The memo may be a dud, but Trump is still applauding. Photo: Win McNamee/Getty Images

Two days after the release of the Nunes memo, the only people who still consider it a conspiracy-revealing bombshell are, predictably, the same pro-Trump figures and politicians who oversold its importance in the first place. While the memo has generated a lot of media coverage, that attention has mostly focused on how the memo does not prove what House Intelligence Committee chairman Devin Nunes, President Trump, and others say it does — and how it supports, rather than invalidates, the rationale behind the investigation into Russia’s meddling in the 2016 election.

But even if the memo doesn’t lay the groundwork for canceling Robert Mueller’s Russia investigation, as some of its cheerleaders clearly hoped it would, that doesn’t mean it won’t do lasting damage to the institutions now caught in Trumpworld’s covering fire. More specifically, critics have pointed out that the memo will likely harm the credibility and reputation of the FBI and larger U.S. law enforcement bureaucracy. That is surely the point: Trump and his allies object to the scrutiny he has received from the country’s law enforcement institutions, so they are conducting an unprecedented campaign to demonize and discredit those institutions and any conclusions they subsequently make against the president.

The Nunes memo, at its heart, calls into question the fairness of U.S. law enforcement, since it alleges that federal law enforcement officials were able to abuse their power in order to pursue partisan political gains, particularly in the application for a FISA warrant to surveil a former adviser to the Trump campaign, Carter Page.

Speaking with McClatchy, Todd Hinnen, a former acting chief of the Justice Department’s national security division, offered a definitive dose of skepticism toward that charge. “I would be very, very surprised to learn that the numerous FBI and Department of Justice officials, and likely several judges appointed by Chief Justice John Roberts, had subverted the safeguards of the FISA system and were pursuing a political agenda,” he explained. “All three branches of government have worked very hard to develop a system of integrity that’s subject to safeguards and the rule of law.”

That integrity is now under attack. Josh Campbell, a supervisory special agent at the FBI, said in a Friday New York Times op-ed that he was quitting the agency “to join the growing chorus of people who believe that the relentless attacks on the bureau undermine not just America’s premier law enforcement agency but also the nation’s security.” (Regulations prevent FBI employees from publicly speaking out on such matters.) These are the stakes as Campbell sees them:

When the F.B.I. knocks on someone’s door or appeals to the public for assistance in solving crime, the willingness of people to help is directly correlated to their opinion of the agency. When an agent working to stop a terrorist plot attempts to recruit an informant, the agent’s success in gathering critical intelligence depends on the informant’s belief that the agent is credible and trustworthy. And, as the former director, James Comey, would frequently say in underscoring the importance of high standards, whether a jury believes an agent’s testimony depends on whether it has faith in the bureau’s honesty and independence. To be effective, the F.B.I. must be believed and must maintain the support of the public it serves.

According to Campbell, individual agents, not the officials targeted by the Trump administration, will suffer the most from the pro-Trump attacks:

The assumption among confused and dismayed F.B.I. employees is that the attacks are meant to soften the blow should the investigation by Mr. Mueller, the special counsel, lead to additional charges. However, these kinds of attacks by powerful people go beyond mere criticism — they could destroy the institution. Although those critics’ revisionist supporters claim their ire is reserved for institutional leadership and not the rank and file, it is the F.B.I. agent on the street who will be most severely affected as public support for federal law enforcement is sacrificed for partisan gain.

There’s also the concern that agents might become reluctant to report information related to the president in light of these partisan attacks, as former CIA agent Robert Baer suggested during a CNN appearance on Friday. And will a juror who watches a lot of Sean Hannity now be willing to believe an FBI agent’s testimony in the courtroom?

Indeed, some damage seems to have already been done to the reputation of the FBI in the minds of Republican voters, some of whom are clearly buying into the anti-FBI/Russia investigation spin. A Gallup poll taken in December found that only 49 percent of Republicans thought the Bureau was doing a good job or better, a drop of 13 points from three years ago. The results of a new Axios/SurveyMonkey poll taken on Thursday and Friday paints an even bleaker picture, with only 38 percent of Republicans saying that they currently hold a favorable view of the FBI, and 47 percent holding an unfavorable view.

There’s also the matter of further damaging the credibility of the already controversial FISA process. Even the American Civil Liberties Union, no fan of FISA warrants, has criticized the Nunes memo. Explained the ACLU’s Christopher Anders in a statement on Friday, “The completeness and accuracy of government representations to the FISA court are longstanding concerns,” but the Nunes memo “does not contain the facts needed to substantiate its charges.”

Those who support FISA warrants, like Just Security’s Jennifer Daskal, are even more concerned:

FISA is an incredibly powerful – and incredibly important – tool that authorizes the gathering of foreign intelligence evidence regarding U.S. citizens and residents pursuant to a court-issued warrant based on probable cause, albeit in situations that are shrouded in secrecy. Its continued vitality depends in significant part on faith that those entrusted to exercise this extraordinary authority do so with ultimate commitment to uncovering truth and abiding by the rule of law. …

[A]n allegation of abuse, in the absence of actual abuse, or even more concerning in a one-sided representation of the facts for purposes of partisan gain, would constitute a dangerous, short-sighted attack on a critically valuable national security tool, in ways that could undercut our national security over the long term.

The Nunes memo and Trumpworld’s continuing attacks on the law enforcement apparatus could have repercussions for the dynamic between Congress and the intelligence community as well. Also at Just Security, Julian Sanchez acknowledged that while you never want the relationship between the House Intelligence Committee and the intelligence community to be too cozy, the Nunes memo goes too far:

The Justice Department and FBI were pretty reluctant to hand over sensitive material relevant to an ongoing investigation, and to then see it mined for items to attack the Bureau in a way they clearly regard as misleading and unfair would, obviously, tend to confirm their initial reluctance. Needless to say, you don’t want it to be an exercise in pulling teeth whenever House Permanent Select Committee on Intelligence (HPSCI) needs sensitive material to conduct its oversight responsibilities. If the agencies aren’t just worried about genuine errors being exposed, but about material being politically repurposes this way, the overseers jobs are predictably going to get a lot harder.

Sanchez’s colleague Michael German agreed that the memo has done significant damage to the committee’s credibility, particularly since the congressional intelligence committees were created to ensure nonpartisan oversight. “I think this [memo] puts a dagger into that notion,” German explained, “which will make it harder for the agencies to share information with them in the future, and harder for the public to accept that they are looking out for our interests rather than their own.”

For a broader view of the repercussions, here is what the folks at Lawfare pointed out at the end of their exhaustive analysis of the Nunes memo:

At the end of the day, the most important aspect of the #memo is probably not its contents but the fact that it was written and released at all. Its preparation and public dissemination represent a profound betrayal of the central premise of the intelligence oversight system. That system subjects the intelligence community to detailed congressional oversight, in which the agencies turn over their most sensitive secrets to their overseers in exchange for both a secure environment in which oversight can take place and a promise that overseers will not abuse their access for partisan political purposes. In other words, they receive legitimation when they act in accordance with law and policy. Nunes, the Republican congressional leadership and Trump violated the core of that bargain over the course of the past few weeks. They revealed highly sensitive secrets by way of scoring partisan political points and delegitimizing what appears to have been lawful and appropriate intelligence community activity.

It was a heavy blow to a system that has served this country well for decades, and it is one that will not be forgotten any time soon.

And again, the damage was already being done. President Trump had already said the FBI’s reputation was “in tatters” and the “worst in history” two months before Nunes’s memo became a Republican cause célèbre. On Saturday, he said the Russia investigation was an “American disgrace.” Whether or not the damage lasts, or in some way protects Trump from the potential consequences of the Russia investigation, is what remains to be seen. “Thanks to this rhetoric, there is a subset of the public that won’t believe what comes out of the Mueller investigation,” former FBI agent and prosecutor Christopher Hunter told the Times after the Nunes memo landed. That may also be true for GOP senators, or at least arguably true as part of a cover story to protect their president and party. Max Boot outlined that fear in the Washington Post on Saturday:

If special counsel Robert S. Mueller III delivers a scathing report on the president and if Democrats win the House in November, it’s almost certain the House will vote to impeach. But it takes 67 votes in the Senate to remove a president.

The case against the FBI that’s being assembled by Trump and his minions is not designed to convince dispassionate observers. It’s only supposed to give the thinnest of cover to true believers — and at least 34 senators — to do what they are predisposed to do anyway, i.e., protect the president at all costs.

In the end, as some are already arguing, Trump’s version of the Saturday Night Massacre — referring to the infamous night of Nixon administration resignations which preceded the firing of the Watergate special prosecutor — may already be happening, only in such a slow-motion way as to protect, rather than doom, this president.

In a new Politico magazine piece, Nixon biographer John A. Farrell compared and contrasted the Watergate scandal to the Russia investigation and Trump, and in doing so spoke with James Doyle, who served as the spokesman for Watergate special prosecutor Archibald Cox. In Doyle’s opinion, even if Trump triggered a Saturday Night Massacre–like event, times have changed, and because of the confusion around this scandal, the system would probably fail this time around. In other words, the obfuscation by Trump and his allies may have already succeeded.

The Real Damage of the Nunes Memo