Dueling memos endanger country and make Russia very happy

Dueling memos endanger country and make Russia very happy
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The House Intelligence Committee’s Democratic memorandum had to be released in order to discredit the committee’s Republican misleading memorandum and expose the White House effort to delegitimize special counsel Robert MuellerRobert (Bob) Swan MuellerSchiff: Trump acquittal in Senate trial would not signal a 'failure' Jeffries blasts Trump for attack on Thunberg at impeachment hearing Live coverage: House Judiciary to vote on impeachment after surprise delay MORE’s Russia investigation. Of course, there are unfortunate byproducts: exposure of U.S. intelligence-gathering protocols and procedures, intensifying the partisan warfare in the U.S. over the integrity of our intelligence work, and abetting Russia’s aggressive efforts to exacerbate the turmoil in U.S. politics.

True to form, President TrumpDonald John TrumpLev Parnas implicates Rick Perry, says Giuliani had him pressure Ukraine to announce Biden probe Saudi Arabia paid 0 million for cost of US troops in area Parnas claims ex-Trump attorney visited him in jail, asked him to sacrifice himself for president MORE blocked release of the heavily-redacted Democratic memo, which was vetted by the Justice Department, calling it “a total political and legal BUST” and “SO ILLEGAL.” Trump warmly endorsed the Republican memo, saying “it totally vindicates me.”  No other president in U.S. history has authorized the public release of secret foreign intelligence information used to obtain a secret foreign surveillance warrant for personal and partisan gain.


The Republican memo purports to reveal “abuses” by the Justice Department and the FBI in seeking a warrant from the Foreign Intelligence Surveillance Court (FISC) to electronically monitor conversations of Carter Page, a former Trump campaign foreign policy advisor. Intelligence officials suspected Page could be an agent of the Russian government. The Democratic memo describes Page’s longstanding ties to Russia, Russian spies’ attempts to recruit him, and why our intelligence agencies sought the surveillance warrant. All of this information is absent in the Republican memo.


The heavily redacted Democratic memo describe Page’s Russian activities, which was the basis for the warrant.

In three subsequent renewals of the FISA warrant, multiple sources (redacted in the Democratic memo) provided additional information of Page’s continuing contacts with several prominent Russian officials after he left the Trump campaign. This information contradicted Page’s testimony before the committee on Nov. 2, 2017 in which he denied any such contacts. The surveillance of Page gave the FBI “valuable intelligence” (heavily redacted in the Democratic memo) of Page’s activities.

The Republican memo claims that the FISA warrant application did not reveal all relevant information about Page. In making this assertion the memo focuses on the “dossier” compiled by former FBI informant Christopher Steele. The dossier describes some of Page’s activities in Russia as well as allegations that Trump while visiting Moscow was involved in salacious sexual activities about which he could be subject to blackmail. The Republican memo asserts that the Steele dossier was an “essential part” of the Page application and that Steele’s bias against Trump was not disclosed in the application. Based, on the Democratic memo, this assertion is false.

Without identifying the sources by name, the FISA application clearly explained the potential bias by Steele, namely, that he was hired by politically motivated U.S. persons and entities in order to discredit Trump’s campaign.   The application disclosed that Steele prepared the dossier on behalf of the Democratic National Committee and the Clinton campaign.

Moreover, the dossier was not that important to the application. The FBI’s knowledge of Page’s suspicious activities long predated receipt of the Steele dossier, and Page continued to be monitored long after receipt of the dossier. The dossier mostly corroborated information about which the FBI already knew. 

Page’s suspicious activities as a Trump campaign foreign policy advisor dovetailed with information revealed by George Papadopolous, also a Trump campaign foreign policy advisor, who claimed he was told by Russian operatives that they could give Trump’s campaign dirt on Hillary ClintonHillary Diane Rodham ClintonFormer Vermont Governor: Sanders 'will play dirty' NYT: Justice investigating alleged Comey leak of years-old classified info New Hampshire state lawmaker switches support from Warren to Klobuchar MORE. (Papadopolous pleaded guilty to lying to the FBI about his Russian contacts). 

Finally, Page lied to the intelligence committee when he was confronted about his Russian contacts. At most, the Steele dossier was a narrow piece of information in a much larger body of evidence presented to the FISA court.

The Republican memo’s attempt to disparage the intelligence agencies by highlighting their use of the Steele dossier is disingenuous. To be sure, the several claims in the dossier have not been conclusively verified, but neither have they been refuted. 

The Republican memo’s effort to undermine Steele’s credibility includes distorted and irrelevant assertions. Steele had been a highly credible informant on Russia for years. He was promptly terminated by the FBI after making unauthorized disclosures to the media. He knew his dossier would be used to damage Trump. He was not paid for his work on the dossier. All of this information was presented to the FISA court.

The Republican memo has become a nefarious weapon in the hands of partisans seemingly bent on disrupting Mueller’s investigation. It does great harm to the work of the intelligence agencies, and fortifies the resolve of Russian operatives who seek to destroy our institutions and our democracy. The Democratic response exposes its misleading assertions and distortions.

Trump and his base likely won’t read that response. Hopefully, others will and understand the danger our country faces from persons who peddle misinformation for partisan gain.          

Professor Ben Gershman is one of the original faculty members at Pace Law and has taught as a visiting professor at Cornell Law School and Syracuse Law School. While in private practice he specialized in criminal defense litigation. A former prosecutor with the Manhattan District Attorney’s office for six years, he is the author of numerous articles as well as two books on prosecutorial and judicial ethics. He served for four years at the Special State Prosecutor Office investigating corruption in the judicial system.