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Trump Just Shot Himself in the Foot

By approving the release of the Nunes memo, the president undermined his own defense against allegations in the Russia investigation.

AP Photo/Evan Vucci

It would be easy to compare Congressman Devin Nunes’s release of a declassified memo on purported surveillance abuses to Geraldo Rivera opening Al Capone’s vault. But this would be extremely unfair to Geraldo, who didn’t know ahead of time that it would be empty.

The four-page memo was drafted by House Intelligence Committee staffers with access to highly classified information about an ongoing criminal investigation into foreign interference in the last presidential election. By Nunes’s account, they uncovered evidence that officials in the FBI and Justice Department abused surveillance powers to spy on Trump campaign staffer Carter Page. “The committee has discovered serious violations of the public trust, and the American people have a right to know when officials in crucial institutions are abusing their authority for political purposes,” Nunes said. “Our intelligence and law enforcement agencies exist to defend the American people, not to be exploited to target one group on behalf of another.”

Against the wishes of his FBI director, Christopher Wray, President Donald Trump approved the release of the previously top-secret memo in the hopes that it would discredit the Russia investigation. But the much-hyped document falls far short of what its backers claimed. As the FBI and House Democrats warned, the memo is also riddled with selective omissions that distort its portrayal of events. And yet, in an ironic twist, it also confirms certain details about the investigation that undercut Trump’s defenses against the accusations he faces.

The memo alleges that former British intelligence officer Christopher Steele—who prepared the infamous dossier of damaging allegations against Trump—was biased against Trump because the consulting firm that funded the dossier, Fusion GPS, was paid for by a law firm hired by the Clinton campaign. Accordingly, the memo alleges that the FBI wrongly withheld Steele’s bias from the Foreign Intelligence Surveillance Court when, based partly on the dossier, it sought a surveillance order against former Trump foreign policy aide Carter Page. The broader, unstated implication is that the entire Russia investigation is tainted by partisanship.

It’s been reported for months that the FBI used the dossier in the investigation and initial FISA warrant application in October 2016, and that Steele’s work could be traced back to Democratic funding. But the memo largely elides two key facts. One is that Page had well-established contacts with Russian intelligence figures long before he joined the Trump campaign, making the choice to surveil him less random than it seems. The other is that the Russia investigation actually began well before Steele contacted the FBI or the FISA application targeting Page was drafted. Federal investigators started probing the Trump campaign’s contacts with Russia in May 2016 after an Australian diplomat told them about troubling conversations he had with George Papadopoulos, the Trump foreign-policy staffer who signed a plea deal with Mueller last fall.

Only in the memo’s final paragraph do its authors acknowledge that Papadopoulos’s loose lips sparked the FBI probe. They also note that information from Papadopoulos also made its way into the FISA application targeting Page, but don’t explain further. Instead, the memo pivots to the texts between FBI agents Peter Strzok and Lisa Page, a frequent topic of chatter in conservative media. Trump-aligned outlets often describe their conversations as evidence of an internal FBI conspiracy against the president. But the Wall Street Journal reviewed more than 7,000 text messages between them and reported on Friday that it found “no evidence of a conspiracy against Mr. Trump.”

The memo then tries to criticize the FBI for relying upon a Yahoo News article by Michael Isikoff about Page’s July 2016 trip to Moscow in its FISA application. According to the memo, the article doesn’t corroborate the dossier because Steele was a source for both of them. “Steele’s numerous encounters with the media violated the cardinal rule of source handling—maintaining confidentiality—and demonstrated that Steele had become a less than reliable source for the FBI,” the memo says.

But the memo refutes its own implications. There’s no indication that the FBI knew Steele was Isikoff’s source or that he had been talking to reporters at all when it submitted the FISA application on October 21, 2016. In fact, the memo says the FBI didn’t break off ties with Steele until after a Mother Jones article revealed his contacts with the bureau on October 31—ten days after the FISA application was filed. The memo goes on to claim Steele “improperly concealed from and lied to the FBI about those contacts,” which would hardly be the FBI’s fault.

While it falls short of proving its overall case, some of the memo’s revelations could be damaging for the Justice Department. Conservative news outlets highlighted one previously unreported detail: that then-Deputy FBI Director Andrew McCabe had “testified before the committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.” But there’s already been some pushback on that claim: CNN’s Jim Sciutto reported that two Democratic committee members told him McCabe didn’t say that. Without the exact testimony at hand, it’s impossible to tell if that’s what he said. The FBI said earlier this week that it had “grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy,” but it’s unclear if this is what they meant.

To underscore its claims of anti-Trump bias on the part of Steele and the FBI, the memo includes a quote from Steele to Justice Department official Bruce Ohr. “In September 2016, Steele admitted to Ohr his feeling against then-candidate Trump when Steele said he ‘was desperate that Donald Trump not get elected and was passionate about him being president,’” the memo says. “This clear evidence of Steele’s bias was recorded by Ohr at the time and subsequently in official FBI files—but not reflected in any of the Page FISA applications.” But Steele apparently had a good reason to think this. After all, he compiled a dossier of allegations suggesting that the Republican candidate for president collaborated with Moscow to undermine an American election because they had compromising information that could be used top blackmail him. Is it surprising that Steele didn’t want that guy to win?

It’s also unclear whether Steele’s views about Trump or the source of his funding would have been fatal to the FISA application in court. George Washington University law professor Orin Kerr noted earlier this week that the government often uses informants who don’t have impeccable credentials. “Even if the Steele research was a major part of the affidavit, whether the funding source would need to be disclosed depends on whether it critically altered the case for probable cause,” he wrote. “If the government looked into the Steele memorandum and corroborated some of its claims, it undercuts the need to disclose the funding source.”

The original FISA application is still classified, so it’s hard to evaluate how much of the Steele dossier was used to get the warrant against Page. But the memo makes an intriguing concession about the memo’s veracity. “After Steele was terminated, a source validation report conducted by an independent unit within [the] FBI assessed Steele’s reporting as only minimally corroborated,” it says. The memo’s authors apparently intended to suggest that the dossier’s dramatic allegations had been debunked. But “minimally corroborated” indicates that the FBI was able to find evidence supporting at least some of the dossier’s contents.

In essence, Trump declassified a document attacking the Steele dossier that also undercuts his political defenses against it.