All Smoke (and Mirrors), No Fire

Devin Nunes’ much anticipated memo—the one that was supposed to reveal corruption in the FBI and a conspiracy within the agency to sabotage the Trump campaign and get Hillary Clinton elected—has been out for a couple of news cycles.  There is so little substance to it that one is inclined to be a bit embarrassed for the poor man.  But it does give us a relatively easy exercise in which to practice our critical thinking skills.

Let’s start with the (almost certainly false) assumption that the Nunes memo is just the truth, the whole truth, and nothing but the truth.  A central accusation of the memo is that the FBI withheld from the FISA court the information that the so-called “Steele dossier,” which was the primary justification for the request to surveil a US citizen, was in fact opposition research paid for by the DNC and the Clinton campaign.  This rendered the dossier utterly unreliable, and the FBI broke the law when it withheld this information from the FISA court.

Consider first the claim that the FBI broke the law.  This depends almost entirely on two factors:  (1) the importance of the dossier in justifying the request for a warrant; (2) how reliable the information in the dossier is.  And the second matters much more than the first; if the information is reliable, then it is entirely legitimate to rest a warrant request on it.  The law—both case law and legal practice—are clear on the matter of whether or not the presence of bias or an ulterior motive on the part of an informant renders information necessarily unreliable.  It doesn’t.  Indeed, judges assume that informants have an ulterior motive; that is why they inform.

The Steele dossier was first commissioned by an opposition research group called Fusion GPS on behalf of a GOP donor who opposed Trump, but the donor dropped it when Trump got the nomination.  Steele was not informed of who wanted the information he was gathering.  Steele himself was a former MI6 agent and, by all accounts, a widely respected member of the intelligence community.  And the validity of whatever argument the FBI made is reflected in the three renewals they requested and received.  A warrant to surveil a US citizen must be renewed every 90 days.  And the request for a renewal requires a showing that the surveillance already authorized is producing useful intelligence.  

As Democrats on the House Intelligence Committee and other officials connected with the FISA process begin to speak, it begins to seem very unlikely that the memo is the truth, the whole truth, and nothing but the truth.  No surprise there.  It is very convenient for the GOP and Trump’s supporters that FISA warrant applications are themselves classified documents.  That means that we the people aren’t likely to see anything other than a highly redacted version that just further obscures matters.

For anyone who cares, there are several articles that provide further detail and some interesting analysis.  Vox provides a full text and summary of the memo.  NPR looks at Fusion GPS, the company behind the Steele dossier.  Asha Rangappa, a former FBI agent, has an interesting take on what the memo really does prove.  Orin S. Kerr provides a clear explanation of the core legal issue.  (Kerr is a writer for the Volokh Conspiracy, a widely respected conservative/libertarian leaning legal blog.)  And so on and so on.

I suspect that none of this will mean much to Trump’s supporters.  The Great Man has proclaimed that the memo proves that there is nothing to the claims of collusion with the Russians, and so it must be.  All else is just the conspiracy that opposes the greatness of the Great Man’s plan to make America great again.