The politics of the Russia investigation increasingly resemble a high-stakes game of capture the flag, with two sides frantically searching for the single item that will hand them victory. For Trump’s opponents, that’s the smoking gun that will prove all their suspicions about him are true. For Trump and his defenders, the quest is for the silver bullet that will offer him full vindication.
The latest fixation is the memo prepared by GOP Representative Devin Nunes and House Intelligence Committee staff, which reportedly alleges impropriety by the FBI and Justice Department in seeking a warrant to surveil former Trump campaign foreign-policy aide Carter Page. Thursday morning, CNN reported what has been apparent for days: Trump thinks the Nunes memo “could discredit the Russia investigation.” The report says:
In phone calls last night and over the past days, Trump has told friends he believes the memo would expose bias within the agency’s top ranks and make it easier for him to argue the Russia investigations are prejudiced against him, according to two sources.
The memo is still not public—it could be released as soon as Friday, with the White House close to approving the memo with some redactions—but it’s a good bet it won’t provide Trump the vindication he seeks. The reasons for that are both specific to the memo, but also endemic to his presidency, in which successive items have been presented as Trump’s great hope, only to dissolve upon the slightest scrutiny. There’s little doubt pro-Trump media will leap on the memo and argue it clears him, but that will do little to actually change the predicaments he faces. Then it will be on to the next future failed vindication.
The pattern was set on the second day of the Trump administration, when, humiliated by crowds that were smaller than those that met Barack Obama’s 2009 inauguration, the new president called the director of the National Park Service and demanded he produce photos that would prove attendance was actually much stronger. Unsurprisingly, this did not work out.
More often, however, these failed vindications have concerned Russia. First came his March 4 tweet alleging Obama had improperly surveilled him:
Terrible! Just found out that Obama had my "wires tapped" in Trump Tower just before the victory. Nothing found. This is McCarthyism!— Donald J. Trump (@realDonaldTrump) March 4, 2017
Had it been true that Obama had ordered a presidential candidate surveilled for political reasons, it would have been a huge story. It might have overshadowed all the stories about Russian interference in the election, and changed the focus from Trump’s scandals to Obama’s. It did not turn out to be true. The president can’t simply order surveillance, for one thing; the Justice Department has since said the claim was untrue; and the White House, despite making the claim and demanding that Congress investigate it, refused to produce any evidence to back it up. In fact, as it turned out, the claim had emanated from a Breitbart story that was in turn based on speculation from the radio host Mark Levin.
The next great Trump hope came later that month, when, in an apparent attempt to show that even if Trump was talking nonsense about being personally surveilled at Trump Tower before the election, there had been improper surveillance of the Trump transition team following the election. Nunes, the chair of the House Intelligence Committee and, perhaps not coincidentally, a former member of the Trump transition team, announced a mysterious set of revelations about improper use of intelligence materials by the Obama White House. Nunes said he couldn’t detail them publicly, but he rushed to the White House to inform the president. This turned out to be a charade, because Nunes had derived the original “revelations” from coordination with National Security Council staffers—in other words, he was rushing to inform the White House of information that came from the White House. But nearly a year later, there is still no evidence to suggest improper behavior inside the Obama White House.
The next major installment came in September, when surveillance of former Trump campaign chairman Paul Manafort, both before and after the 2016 election, was revealed. Ordinarily, the news that the FBI felt a candidate’s campaign chairman was worthy of surveillance would be a blow, but Trump’s defenders quickly turned the argument around, arguing it vindicated the president’s original “wiretap” claim. As I explained in detail at the time, it did not: The timing was off, and Trump was never the target. (Later that year it became clear why Manafort was being surveilled, when Special Counsel Robert Mueller charged Manafort with laundering $75 million in overseas profits.)
Now comes the latest supposed vindication, the Nunes reprise. Perhaps this will turn out differently when the memo itself is released, and it will in fact end Trump’s troubles, but there are plenty of reasons to doubt that.
For one thing, the memo is not even four pages long, which raises questions about how much it can really say. Like the first round of Nunes, this has been a comedy of errors. After Nunes and staffers produced the memo, ranking committee Democrat Adam Schiff said that most of the committee was unfamiliar with the underlying intelligence—an assertion that the Justice Department confirmed in a letter to the White House, saying Nunes himself had not read the materials. Republicans pushing for the memo’s release have argued that the intelligence community is prone to abuse, even as they voted against reforms that might constrain surveillance. Nunes did not directly answer a question about whether he had coordinated with the White House on this memo as well. Republicans have refused to release publicly a Democratic memo replying to Nunes’s memo. The release of the memo has also set off an unprecedented conflict between the Justice Department and White House.
Then on Wednesday night, Schiff claimed that Nunes had materially edited the memo between when the House Intelligence Committee voted (along party lines) to send it to the White House to review for release—meaning the committee had voted to send a different memo. Nunes acknowledged the edits but contended they were minor. This is not the sort of handling that fills one with confidence that everything here is being done competently and on the up-and-up.
These are all second-order considerations, though. What about the memo itself? The central accusation, based on what’s known, is that the Justice Department improperly signed off on an application to a Foreign Intelligence Surveillance Act judge for a warrant to surveil Page. The application (the memo contends) was based on information from a dossier compiled by Christopher Steele, a former British intelligence agent who was researching Trump for a company paid by the Democratic National Committee.
As I have reported, and as Orin Kerr also writes, this is dubious. First, it’s doubtful that the warrant application would have been based solely on the Steele dossier. American intelligence agencies had long had an eye on Page, who they believed was subject to recruitment as a Russian agent as early as 2013. Second, even if the dossier was part of the application, the fact that it derives from opposition research wouldn’t bar the FBI from using it unless the bureau had reason to believe it was false and used it anyway.
Still, imagine for a moment that it is true that the FBI used only the Steele dossier to apply for the Page warrant, and that it acted improperly. Certainly, as I have noted elsewhere, this would not represent the first case of intelligence overreach in American history. That would be great news for Page’s defense, but it is hard to see how this would solve Trump’s broader problems. Page claims he was a bit player anyway. He also doesn’t make for a great political cause, given his peculiar and sometimes contradictory answers to questions from the House Intelligence Committee.
Moreover, the Page warrant has no bearing on the larger questions of whether the Trump campaign, or Trump himself, was colluding with the Russians, and whether Trump obstructed justice by trying to hobble the investigation into collusion. It would not do anything to undermine George Papadopoulos’s guilty plea, or his conversations with Russians, or his boasts to an Australian diplomat that the Russians had dirt on Hillary Clinton. It would not invalidate Michael Flynn’s guilty plea and cooperation with Mueller. It would not erase the June 2016 Trump Tower meeting, or the questions over a statement about that meeting he dictated in summer 2017. It would not throw out Trump’s attempts to pressure James Comey, nor his firing of the FBI director and explanation that he did so because of the Russia probe. It would not efface Donald Trump Jr.’s DMs with Wikileaks.
Of course, actually rebutting this extensive set of stories is not what Trump means when he says he hopes the memo will undermine the Russia probe. When the Mueller probe and the congressional investigations are over, Trump may very well emerge unscathed, or at least neither indicted nor charged. (The political damage has already begun.) The goal of these allegedly vindicating moments, however, is not to actually rebut facts. The goal is simply to spread confusion and create fog that might give the impression that the Justice Department is unreliable and that the investigations into Trump are politically motivated by opponents who inhabit the same moral plane as he does. That’s why even if the Nunes memo proves to be a flop, we can expect another supposed vindication for Trump before too long.
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