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Outcry over the Nunes memo is damning for Democrats and FBI

The release of the four-page memo by the House Intelligence Committee has triggered preset responses from both sides. The memo is, in fact, enlightening in a number of respects. However, the most alarming elements may be what it does not contain.

First, it is important to start with what we previously knew. At the heart of this controversy is the dossier that was compiled by Christopher Steele, a former British spy, and Fusion GPS with funding from Hillary ClintonHillary Diane Rodham ClintonCarter Page files defamation lawsuit against DNC Dems fear party is headed to gutter from Avenatti’s sledgehammer approach Election Countdown: Cruz, O'Rourke fight at pivotal point | Ryan hitting the trail for vulnerable Republicans | Poll shows Biden leading Dem 2020 field | Arizona Senate debate tonight MORE and the Democratic National Committee. Previously, Clinton’s top campaign lawyer, Marc Elias, and former campaign chairman, John Podesta, denied any connection to the dossier. After news stores confirmed the funding, Elias and Clinton herself admitted that they did fund this effort.

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Second, we knew that Steele shopped the information in the dossier to various reporters to try to get them published during the election. Third, the contents of this dossier were so unverified that virtually all of the reporters declined to run the story during the campaign.

 

The memo confirms that top FBI officials, including former director James ComeyJames Brien ComeyFBI investigated whether McCabe leaked info about Flynn and Trump to media House Judiciary chairman threatens to subpoena Rosenstein Three reasons Mueller may not charge Trump with obstruction MORE and his deputy Andrew McCabe, used the dossier to secure secret surveillance targeting a U.S. citizen. That citizen was Carter Page, an aide to the presidential candidate of the party opposing the Obama administration. Comey signed off on multiple Foreign Intelligence Surveillance Act (FISA) applications targeting Page.

The memo states that the applications never mentioned that the dossier was funded in significant part by the Clinton campaign, even though high-ranking officials knew about that funding. That would obviously be highly material to judging the value of the information. To make matters worse, Steele admitted to FBI agent Bruce Orr, who was later demoted, that he hated Trump and was “desperate that Donald TrumpDonald John TrumpKey takeaways from the Arizona Senate debate Major Hollywood talent firm considering rejecting Saudi investment money: report Mattis says he thought 'nothing at all' about Trump saying he may leave administration MORE not be elected and was passionate about his not being president.”

The memo alleges that McCabe admitted in testimony that, absent the Democratic-funded dossier, there would not have been a FISA surveillance order. In fairness to the Democrats, it should be noted that this brief memo does not reveal the full record given to the FISA court. Page has a rather sordid and suspicious history in dealings with the Russians that is entirely separate from this dossier.

Moreover, this is largely a summary of testimony, and we should read that testimony once truly classified information has been redacted. Finally, there is reference to a prior investigation of George PapadopoulosGeorge Demetrios PapadopoulosCalif. man ensnared in Mueller probe sentenced to 6 months in prison The Mueller investigation: Where it stands at the midterms Mr. President, tear down the wall hiding those FISA abuses MORE, who later advised Trump on foreign affairs, which preceded the dossier and may have been an added basis for the original application.

However, my greatest concern is what is not in the dossier: classified information “jeopardizing national security.” Leaders like Minority Leader Nancy PelosiNancy Patricia D'Alesandro PelosiOn The Money: Deficit hits six-year high of 9 billion | Yellen says Trump attacks threaten Fed | Affordable housing set for spotlight in 2020 race Deficit hits six-year high of 9 billion: Treasury GOP has not done a good job of selling economic achievements, says ex-Trump adviser MORE (D-Calif.) declared that the committee had moved beyond “dangerous irresponsibility and disregard for our national security” and “disregarded the warnings of the Justice Department and the FBI.”

Now we can read the memo. There is a sharp and alarming disconnect between the descriptions of Pelosi and the House Intelligence Committee’s Ranking Minority Member Adam SchiffAdam Bennett SchiffThe Hill's Morning Report — Presented by the Coalition for Affordable Prescription Drugs — Trump travels to hurricane-ravaged Florida, Georgia Dems eye ambitious agenda if House flips Schiff: There is legal precedent for impeaching sitting officials over prior criminal conduct MORE (D-Calif.) and the actual document. It clearly does not contain information that would reveal sources or methods.

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The memo reaffirms concerns over the lower standards that apply to FISA applications as well as the misuse of classification authority. Most of this memo references what was already known about the use of the dossier. What was added was testimonial evidence and details to the publicly known information. Yet, the FBI vehemently objected to the release of the memo as threatening “grave” consequences to national security ground.

However, even before the release, the FBI seemed to be objecting to the framing of the facts rather than the disclosure of “sources and methods.” The FBI said publicly that it had “grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.” That is not an objection to classified material but the fairness of the portrayal. For years, many of us have objected that the intelligence agencies classified material for improper purposes to frame public debate or conceal embarrassing information. Unless there was a material change in this memo, it proved to be an empty “grave” after weeks of overheated hyperbole.

The FBI opposition to declassification of this memo should be a focus of both Congress and the public. The memo is clearly designed to avoid revealing classified information. For civil libertarians, this is a rare opportunity to show how classified rules are misused for strategic purposes by these agencies. The same concern can be directed toward members who read this memo and represented to the public that the release would clearly damage national security. In the end, there are legitimate questions of political bias raised in the conduct of some FBI officials. This does not mean that there are not legitimate answers for these questions but the effort to keep this memo classified should be itself a matter of grave national concern.

There are indeed two narratives competing in this controversy, one involving improper political influences in the FBI, and another of improper political pressure from the White House. Both could well be true but it is bizarre to suggest that only one of those allegations should be investigated. The FBI and the intelligence agencies have a long and documented history of such abuse. This includes the targeting of political leaders like Martin Luther King Jr. As I discussed earlier, Subsection 11(g) of Rule X was created to allow members of Congress to vote to release classified information when the majority determines “that the public interest would be served by such disclosure.”

This serves the public interest, as would a response from the Democrats and the FBI. Regardless of what comes out of the merits of the Russian investigation, Congress should investigate the misuse of classified proceedings in both the securing of the FISA applications and the later effort to prevent the release of this memo.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He has been lead counsel in national security cases for more than two decades and has testified before the intelligence committees. You can follow him on Twitter @JonathanTurley.