Thoughts on the Nunes Memo - TTG

My first reaction to reading the much ballyhooed Nunes memo was to wonder why the DOJ and FBI fought so vociferously to prevent its release. It didn’t give a lot of what I would consider worthy of a TOP SECRET classification nor did it reveal any FBI transgressions a hundred times worse than Watergate as promised. What it did reveal is the fact that a FISA warrant was granted on 21 October 2016 targeting Carter Page and that it was subsequently renewed three times. 

Typically the DOJ and FBI offer only a Glomar response (neither confirm nor deny) to any inquiry about FISA warrants. I believe this is why they fought the release of this memo. It sets the precedent that the Government acknowledges the issuance of a specific FISA warrant. This will have consequences beyond the Mueller investigation. 

One consequence has already happened. Washington DC national security attorney Mark Zaid and his James Madison Project have had a long standing FOIA lawsuit in Federal Court seeking disclosure of any FISA warrants to spy on the Trump campaign. The consistent Government position has been a Glomar response. Earlier today Zaid put in a filing in this case taking into account the President’s unprecedented action to declassify the existence of this FISA warrant. The Court’s response was pretty damned quick. This was just tweeted. “Judge Mehta has just ordered DOJ to notify the court by February 14th whether the Nunes Memo requires the reversal of its Glomar Response. If DOJ says it does not, Judge Mehta wants an explanation from DOJ.” 

So, we might all get to see the full, albeit redacted, FISA warrants including the Carter Page one. However, I wouldn’t hold my breath waiting for those FISA warrants to appear anytime soon. Mark Zaid also got word today that his FOIA lawsuit to get the Comey memos was denied because releasing those memos could effect an open investigation… the Mueller investigation. Perhaps we’ll see all the warrants and memos once the investigation concludes… or is stopped in its tracks.

Unless Trump uses this Nunes memo in a “go for broke” effort to fire all the top DOJ and FBI folks and replace them with new folks who have pledged their personal loyalty to Trump, I don’t see this memo having a tremendous effect on the Mueller investigation. By the memo’s own admission the FBI investigation began in July 2016 with information surrounding Papadopoulis, probably from Australia. 

Prior to this FBI investigation, an interagency working group was established in April 2016  from the FBI, CIA, NSA, DOJ, the Treasury Department’s Financial Crimes Enforcement Network and representatives of the DNI to begin an inquiry into the movement of Russian money into the US to pay hackers and influence the election. This action was taken based on info received from the Estonian IS concerning Trump associates meeting RIS operatives in Europe and a recording indicating the Russian government was planning to funnel funds aimed at influencing the US election. GCHQ became aware in late 2015 of suspicious “interactions” between figures connected to Trump and known or suspected Russia. This intelligence was passed to the US as part of a routine exchange of information. Germany, Poland and possibly the French DGSE also passed on SIGINT.

The existence of neither of these investigations was leaked to the press before the 2016 election. I would think the vast Borg conspiracy would have done this as a vital part of their soft coup. It would have been effective. Instead, they publicly announced the reopening of the Clinton email investigation a week before the election. Is that any way to run a secret society?

The Mueller investigation is not a Borg conspiracy or a leftist conspiracy or a witch hunt. It is a federal counterintelligence and criminal investigation. I have no doubt there have been and will be instances of investigatorial and prosecutorial arrogance, overreach and even errors when this is all over. Whether there will be serious indictments that will permanently hobble or even destroy the Trump presidency is unknown. He may come out of this exonerated and stronger than ever. Only a thorough investigation, with proper oversight, will tell. 

TTG

https://assets.documentcloud.org/documents/4365715/Notice-Foia.pdf

http://www.mcclatchydc.com/news/politics-government/article127231799.html

Comments

[aleksandar]

TTG
Comment 42
Yes, but you also know that the " drunk guy " can be an asset for foreign IS.
Can be used to willingly disseminate false intel.
There have been a lot of cases in the past.

[Eric Newhill]

TTG,

This is a tangent from the topic, but I promise you it's a sincere thought and question; based on your legal theory, if the mayors, governors and other politicians involved in the promotion of sanctuary cities and defiance of federal law have been meeting with members/operatives of foreign govts (say Mexico), could a case not be made against these sanctuary politicians that they are "conspiring to act in the United States as an agent of the [Mexican government] without providing notice to the Attorney General, which carries a maximum sentence of five years."?

[blowback]

It is suggested that if the Steele Dossier wasn't used for the FISA warrant, the FBI/DoJ could have used Papadopoulos' confession. But what would that have got the FBI/DoJ? Section 702 warrants on a Maltese professor of international relations, a Russian commercial lawyer and Putin's niece who is not really Putin's niece. Would they have got a warrant to monitor Papadopoulos' communications? Is buying damaging information on a political opponent illegal? Not the best foundations for any case. They had to go after Carter Page because he gave them direct access to the Trump campaign.

[steve]

I though that McCabe's testimony has not ben released? Could someone link to this as i have not been able to find it.

Steve

[Fred]

TTG,

"... why the DOJ doesn't want it released. They don't want to establish a precedent for future cases."

In the Star Chamber all the evidence is kept secret, because the government and its agencies have our best interests at heart. The current outrage from DOJ, along with Rep. Schiff and company, are, to quote Theodore Dalrympole, an example of “The Cartesian point of moral epistemology: I'm angry, therefore I'm right.”.

[turcopolier]

Jack

Whether or not his counselors advise him not to de-classify he has the legal power to do so. pl

[The Twisted Genius]

Eric Newhill,

Reference your comment at #80

Depending on how zealously the USG wants to pursue the issue, I think this "foreign agent" statute could be used if mayors or governors work too closely with foreign governments over sanctuary status, pollution control or even economic promotions. Perhaps this whole sister city movement can be seen as a conspiracy against Trump's America First policy. Seriously though, the circumstances of any such conspiracy would have to be deliberately blatant in order for such a prosecution not to be immediately laughed into oblivion.

[The Twisted Genius]

blowback,

reference your comment at #81

Buying damaging information on political opponents is opposition research, a widely practiced political activity and lucrative business. It's not illegal.

Going after Page did not give the FBI direct access to the Trump campaign. Page left the campaign prior to the granting of the July 2016 FISA warrant.

[The Twisted Genius]

steve,

Reference your comment at #82

The McCabe testimony in question has not been released. The Nunes memo makes an interpretation of what the testimony contains. Others have said that interpretation is wrong. Maybe that testimony will be the next thing released. The release of the Simpson testimony sets a precedence for that.

[Eric Newhill]

"Seriously though, the circumstances of any such conspiracy would have to be deliberately blatant in order for such a prosecution not to be immediately laughed into oblivion. " - TTG

CA Gov Jerry Brown meets w/ the El Presidente (of Mexico) to discuss immigration while doubling down on protection sanctuary cities in his state and you think there is less "there" there than Carter Page, a private citizen, meeting w/ Russians to do some international business?

While it is indeed a conspiracy against Trump's vision for America, it is also - far more saliently - a conspiracy against existing US law. Period. Full stop.

[English Outsider]

Thanks, TTG. I found your article measured and balanced and was grateful you could take the time to reply to a comment of mine on what must be, from your perspective, only a minor element in the debate at present raging in the States.

It's late afternoon here, and my domestic affairs are so far from the ordered perfection of the Colonel's household that if I don't get out and saw some logs soon it's going to be a very cold evening. I hope you don't mind therefore if I write as it comes about how that minor element appears from the UK perspective.

It's a wretched mixed-up business that you're disentangling in your meticulous way, this "Russia-gate" affair. I can follow you when you write on the Ukraine and Syria but, as you'll have guessed but are too kind to say, for me as probably for most UK citizens the whole mess of investigations and enquiries over in the States is now just a blur; I've long since lost track of facts and sequence and if I did have a grasp of them I don't have the background or knowledge to evaluate them.

Out of that blur emerges Steele. He can scarcely not be in sharp focus this side of the Atlantic. What on earth is a UK citizen, and ex-Intelligence at that, doing playing such a major part in US politics? A squalid part too; and the Americans are going to have difficulty in getting to the bottom of it because the UK side of the affair will be sealed to them.

PT set out a timeline recently. As more facts come out I expect it'll get filled in more. As seen from here the timeline is simpler and it won't alter much.

Event one is the American Presidential Election result. For a moment - only a moment - it looked as if a brief Obama-style coming together was on the cards after the frantic infantilism of an American Presidential election. That brief coming together didn't of course happen this time round. OK, business as usual then. Those of us in the UK for whom Trump represented the advent of Fascism or populism could sit back and wait for the forces of good to restrain him. Those of us - more than one would think, perhaps - for whom Trump represented a way out of the dead end of current Western politics could sit back and see if he was going to make it.

Event two. We didn't sit back for very long. Explosive revelations about the new American President were next. Those revelations were in the 30% or so of the Steele dossier that the experts now dismiss as irrelevant. They weren't dismissed then; and the fact that it was an intelligence product gave them more authority than the usual gutter press or internet scandal. With such revelations it seems that the important thing is to get the story out before it can be examined. Later denials or refutations are never as widely publicised and the scandal remains true for many even when disproved. That scandal undermined the early days of the Trump Presidency. Who can take seriously a man who has been so exposed? Just as Clinton lost his gloss after the Lewinsky scandal, Trump was diminished by the salacious elements in the Steele dossier and the fact that they were not verified made little difference.

Event 3 was the most disturbing, however. Semi-official sources and the English media backed up Steele. I thought at the time - that's a great "Special Relationship" if we can do that to a new American President. For me it simply represented a new low point in the depths to which English politics and media spin can sink. Quite an achievement, when you think about it.

That's the UK timeline. Only three events and two of them need explaining. If they're not explained then we English will just have to get used to regarding our ex-intelligence officers as officially approved hit men for this or that faction in American politics. Because a significant part of the Steele saga is what didn't happen. There's been no apology for or disavowal of Steele's activities from the UK Government.

[Dabbler]

“What I meant to say is not what you thought you read“. My basic point is that the Nunes memo itself is not a strong, sturdy reed. The hype preceding and following the memo’s release gives it a current power, but that power is likely to diminish in the near future. IMO, the memo is not a holy grail. It’s main utility for Trump and the Trumpians may lie in its being used in the very near term as a fulcrum for pushing out those DOJ and FBI people regarded as hostile.

By the way, Carter Page left the campaign before the FISA warrant issued. The warrant would have had to have been retroactive (!) to give the hostiles direct access to the campaign (I don’t doubt the hostility).

[Cvillereader]

My understanding is that the FISA warrants are often indeed retroactive. The FBI/DOJ can, in certain circumstances, access electronic communications, and subsequently obtain authorization from FISC for having done so.

[The Twisted Genius]

Eric Newhill,

California's passage of SB 54 (California Values Act) is a clear challenge to the USG effort to pressgang state authorities and resources into the enforcement of Federal immigration laws. California's ongoing discussions with Chinese officials to further the goals of the Paris Accords in defiance of Federal authorities is another clear challenge to current USG policies. Then there's the direct challenge to Federal narcotics laws with the legalization of marijuana. This may be much more a soft secession rather than a conspiracy to act as an agent of a foreign government. I think this issue deserves a separate post and I may do just that. Thanks for bringing up the issue.

Concerning poor Carter Page, he was the target of at least one recruitment attempt by the SVR. That was established in the Federal trial of Buryakov, the SVR intelligence officer. Carter subsequently put himself in the perfect circumstances for further recruitment attempts and continued to openly express ideas indicating a susceptibility to recruitment. He even billed himself as an advisor to the Kremlin. That's not just international business.

[Eric Newhill]

TTG,
Yes. I aware that Carter Page was the subject of at least one recruitment attempt. IMO, "attempt" should be the emphasized word in the statement.

As for subsequently putting himself at risk for further recruitment attempts, wouldn't anyone doing business in Russia at least unwittingly be doing the same?

Now, the rest of your comment, "openly express ideas indicating a susceptibility to recruitment" I think is the crux of the matter at hand - and the crux is sinister and antithetical to the American ideal.

Page, like Trump, believes that the US can be more open w/ Russian. In fact, potentially, friendly. This is counter - deeply counter - to the ideology of what we call "The Borg". That merited page being spied on (in the borgist mind). When Trump expressed similar ideas and then hire Page, The Borg's collective head must have exploded. It became necessary for the Borg to spy on Page and Trump to learn what they might be up to re; Russian relations, learn how to sabotage and, ultimately, how to stop it; even if that meant getting rid Trump himself. Hence the "collusion" investigation. Collusion = anything other than overt hostility toward Russia.

You see Russia as an implacable foe more than others here. Thus, you buy into the collusion meme. Those that see the possibility of cooperation w/ Russia see the collusion meme as BS. IMO, that is what this is all really about.

[Eric Newhill]

TTG,
Looking forward to your piece on CA - that should be fun

[Eric Newhill]

TTG, Finally w/ re; to Page's statement to the publisher that he worked for the Kremlin - that must be a big nothing. Otherwise, Page would have been charged under FARA at least.

Clearly, The Russians made the proper assessment; the guy is a dimwit.

[Rhondda]

Perhaps the Russian assessment was that he is/was NOC.

[Jack]

TTG #78

I get what you and Col. Lang are saying that Trump has the legal authority to declassify any document classified by the Executive Branch. He also has the legal authority to fire any top official in the Executive Branch. We can't lose sight of the fact of the hysteria and consequence of Trump firing Comey. The appointment of special counsel Mueller since it was alleged that he obstructed justice in firing Comey. In light of this Trump's attorneys will counsel him not to do anything that would provide grounds for Mueller to accuse him of obstruction of justice. Of course it probably goes nowhere since it is unlikely that the Senate could muster a two-thirds majority to impeach. But even you have to agree that the media hysteria would be deafening. So for any practical purpose Trump is constrained from declassifying any document relating to Russiagate.

OTOH, Rosenstein is not constrained at all in declassifying any of the DOJ documents including the FISA application on Page, all the memos, emails, text messages relating to the Trump and Clinton investigations. He can end the controversy tomorrow.

I don't know what Trump has blocked and stalled from day one regarding Russiagate. Maybe you can enlighten me. I know that the DOJ has stalled and blocked the Congressional investigators all along. If they want transparency and not hide behind sources and methods they can easily disclose all the material and we'll be able to move on. Blaming Trump when the allegations are against him is not a strong argument. It is those like the DOJ, FBI, the Democrats and the media who need to prove the veracity of their allegations. It is very easy for the DOJ to shed light on all this. Nothing prevents them to declassify and setting precedents is a specious argument in the current circumstances when there is some evidence of a conspiracy at the highest levels of the FBI and DOJ.

[The Twisted Genius]

Eric Newhill,

I assess Page based on my experience as a case officer. If I was an SVR case officer I would see his tempting access as an advisor to a potential President as near irresistible. His actions and utterances clearly show a potential susceptibility to recruitment. His continued dealings with Russian businessmen and travel to Moscow offers the perfect opportunity for a recruitment pitch. The only downside is the previous SVR assessment of Page as an idiot. In fact, this is all so tempting and perfect, I would be leery of Page being an OFCO (offensive counterintelligence operations) dangle. However, his demonstrated idiocy might convince me that OFCO wouldn't deal with him. I would have gone for a recruitment pitch. The FBI would have made this same assessment.

I don't see Russia as an implacable foe. We are potential adversaries and competitors, but there is much we can cooperate on. However, even as we seek this cooperation, we will continue to spy on each other and compete in other ways. This Russian info op surrounding the 2016 election is part of this competition. Again, if I was a Russian intelligence officer and saw a chance to either prevent Clinton from becoming President or severely weaken her Presidency with an elegant and bloodless info op, I would be negligent and unpatriotic not to undertake that info op. It's just part of how nations deal with each other.

[Dabbler]

Are you talking only about those restricted circumstances in which electronic intercepts of a noncitizen, resident of a foreign country, etc. incidentally capture conversations with US citizens (which would appear to be inapplicable re carter page), or are you aware of broader circumstances that would perhaps validate DOJ and FBI intentionally intercepting Page’s conversations without a prior warrant and then gaining ratification via a subsequent FISA procedure? Is there a reference for any such broader circumstances? Have there been any allegations that Page was wiretapped prior to the July 2016 FISA warrant?

[Rhondda]

I had read that Page was ex Navy Intelligence. With all due respect, it seems not very believable to this old mid-western lady that such an organization would have idiots and dimwits in its employ.

Of course, after seeing the ridiculous (to my eyes) Steele "dossier" sucked up with a straw by people who ought to know better...well, perhaps I have overestimated the intelligence of Intelligence. Or underestimated the power of willful blindness induced by bias confirmation.

[turcopolier]

Rhondda

Page is an Annapolis graduate and could not resign until he had served five years as an officer. They had to do something with him for that time. He probable did not want to go to sea while he waited to resign. pl

[turcopolier]

TTG

I am not clear on the chronology. Was Page a "an advisor to a potential President" when they made their pitch? IMO, involving a CO under non-official cover and without diplomatic immunity was sloppy and it invited prosecution of that CO. BTW, how did the FBI know they had pitched him? pl

[turcopolier]

Rhondda

That he was a US NOC working the Russia target? Interesting thought. If that was the case they should have pitched him offshore, maybe in Russia on one of his trips where they would have had him on their turf. I would not have approved a plan for a recruitment pitch in New York. pl