Democrats don’t need to discredit Nunes memo — The memo does that itself

Democrats don’t need to discredit Nunes memo — The memo does that itself
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In the latest development in the war of the House Intelligence Committee memos, the White House refused to release the Democrats’ memo defending the Justice Department’s conduct in seeking court approval to wiretap Carter Page, a one-time Trump campaign adviser suspected of being a Russian agent. The White House claims that the memo “contains numerous properly classified and especially sensitive passages.” 

Presumably, the Democrats will redraft their memo, which is intended to rebut the memo authored by House Intelligence Committee Chairman Devin NunesDevin Gerald NunesTech privacy practices under scrutiny after DOJ subpoenas GOP's Stefanik defends Trump DOJ secret subpoenas CNN reporter's phone and email records secretly obtained by Trump administration: report MORE (R. Calif). The Nunes memo claims that the DOJ misled the Foreign Intelligence Surveillance Court in applying for a wiretap on Page.

The Democrats don’t need classified information to impeach the Nunes memo. The Nunes memo is the best evidence that the DOJ didn’t mislead the FISA court, but rather, that the Republicans on the House Intelligence Committee have tried to mislead the American people.


The Nunes memo is significant not for what it said but for what it left out, namely, the identification of any inaccurate facts in the wiretap application about Page’s activities, including his meetings with Russian officials.


Unable to make that crucial showing the Nunes memo instead attacked the wiretap’s use of information compiled by a former British spy, Christopher Steele. The Nunes memo claims that Steele was paid by the Democratic National Committee and the Clinton campaign to conduct opposition research about then-candidate Trump’s ties to Russia. In other words, Steele was biased.

A source like Steele, however, can be both biased and accurate. In attempting to show that the Steele dossier tainted the wiretap application, the Nunes memo points to the application’s reliance on an article in Yahoo News about a trip Page took to Russia in July 2016. Allegedly, the article relied on information from Steele. Regardless, that event actually happened — Page has subsequently admitted that had made such a trip to Russia — and Steele’s bias doesn’t make it any less true.

No one should be surprised to learn that prosecutors often use unsavory or questionable characters to provide information or testimony in judicial proceedings that proves reliable and accurate. Criminal cases aren’t made using angels or nuns as informants or witnesses. By the standards of government witnesses in major criminal cases — including hit men, drug dealers and Mafia capos — Steele is pretty tame. 

Unable to attack the factual accuracy of the wiretap application itself, or of the specific information provided by Steele, the Nunes memo can only argue that the DOJ misled the FISA court by not disclosing Steele’s political bias.

Here, the Nunes memo might have benefited from a little legal research — and been a little more candid. The issue of disclosing a source’s motives has arisen in a line of cases dealing with challenges to search warrant applications, which are governed by the same Fourth Amendment standard as the Page wiretap application. As one legal scholar observed, “courts routinely reject as insufficient defendants' claims that the affidavit should have included information about the informant's bias or motive to lie.”

But, in this case, the FISA court was alerted to Steele’s possible bias by the DOJ. As even the House Republicans grudgingly conceded, but only after the Nunes memo was made public, the DOJ had included a footnote in the Page wiretap application stating that Steele may have been politically motivated. In other words, the DOJ may have gone further than the law required.

Here’s where we are. The Page wiretap application presented the facts accurately, at least, the Nunes memo hasn’t shown otherwise; the DOJ disclosed to the FISA court that the Steele dossier may have been politically motivated; and the Nunes memo is much misleading political ado about nothing.

Gregory J. Wallance is a lawyer and former federal prosecutor and writer in New York. He is the author of the forthcoming “The Woman Who Fought An Empire: Sarah Aaronsohn and Her Nili Spy Ring” (March 2018). Follow on Twitter @gregorywallance.