Let’s leave aside for now the obvious partisan nature of the Nunes memorandum—the four-page document released Friday by the chair of the House Intelligence Committee, California Rep. Devin Nunes. Let’s leave aside the fact that everyone who has read the underlying classified FISA application for a warrant to surveil former Trump campaign adviser Carter Page says the memo is incomplete and out of context. Let’s leave aside as well the equally obvious partisan nature of the Republican response, as House members and the president try to delegitimize special counsel Robert Mueller’s investigation and demonize the deputy attorney general, Rod Rosenstein. All of that, by itself, is good and sufficient reason to think that the Nunes memo is not a serious effort at oversight.
But let’s put that aside. Instead, let’s take the Nunes memorandum on its merits and assume that it is what it purports to be—an accurate summary of a purported problem with the FISA application process. What then should we make of it?
Under the most fair reading of the memorandum, the argument it makes is as follows: The Steele dossier—a collection of reports filed by former British intelligence officer Christopher Steele—is a biased and flawed document produced by someone out to “get” the president; FBI and Justice Department officials knew of the bias and did not disclose it to the judges of the FISA court who approved the FISA warrant; as a result, the rights of an American citizen (Carter Page) were violated; and (more importantly, from the perspective of the Republican Party) the FBI’s reliance on the Steele dossier corrupted the FBI investigation of the Trump campaign—all of which is, in effect, the “fruit of a poisonous tree” that should no longer be credited.
Given that story line, one can only conclude that the Nunes memo fails to make its case—and fails quite badly at that.
Consider, first, the obvious timing problem. The Nunes memo begins with a FISA application dated October 21, 2016. That date is significant for a number of reasons. As an initial matter, coming less than 20 days before the election, it seems a particularly poor way of trying to influence the outcome of the election. A FISA application just a few days before November 9 would not actually have produced any evidence until well after the election—making Nunes' implicit charge of a corrupted investigation chronologically implausible. In addition, the focus on this date has to deal with the uncomfortable fact that the surveillance of Page it authorized started roughly a month after Page officially left the Trump campaign—so, again, it is a poor way of effectuating a bias against Trump to collect evidence relating to the actions of a former campaign volunteer.
But the most important reason to focus on the 2016 date is that it ignores another, earlier date. We know from public reports that the FBI opened its inquiry into Page’s Russian connections as early as 2013, at which time the bureau already had probable cause to think Russian intelligence operatives might be trying to recruit him. (The Russian spies, by the way, thought that Page was “an idiot,” according to court documents.) Any story of the investigation of Page that starts in the middle is incomplete at best—and since we don’t know what was in the earlier Page application or in the rest of this October application, we can’t really know how incomplete it is. But that careful incompleteness is, by itself, grounds to doubt the memo’s conclusions.
The other timing problem arises from the effort to tie this allegedly flawed FISA application to Deputy Attorney General Rosenstein (for whom the president apparently has great disdain). Of course, before the election Rosenstein wasn’t the deputy attorney general—he was a U.S. attorney for the district of Maryland. To link him to the earlier “Steele-based” October application, the Nunes memo has to tie that original application to the application for a renewal of the FISA surveillance order that Rosenstein authorized in 2017, after he was appointed by President Trump and confirmed by the Senate.
But that timeline weakens the Nunes case for bias rather than strengthening it. Between the original application and the Rosenstein renewal, the Page surveillance was renewed two other times, for a total of four approvals altogether (and public reports say that there were four separate judges who did the reviewing—suggesting that four independent reviews validated the FBI’s investigation). But these renewals mean that it is utterly implausible (if not borderline impossible) for the renewal that Rosenstein approved to be reliant on the Steele memorandum.
Here’s why: When a FISA order is obtained to conduct surveillance on an American, the FBI must get a reauthorization from the FISA court every 90 days. In seeking renewal they cannot simply recycle the original application—they must demonstrate that the surveillance has been fruitful. In other words, they need to show the judge that the surveillance has developed foreign intelligence that reaffirms the original probable cause determination and shows that their suspicions had merit and the target is acting on behalf of a foreign power. If the FBI cannot show new evidence like this, the surveillance is likely to be terminated. In other words, the fact that the FISA order was renewed means that the original “poison” of the Steele memorandum did not taint the subsequent renewals—it means that there actually is a “there there”—at least in the eyes of the renewing judges.
Next, the Nunes memo reduces its credibility by including language that is intended to create a misimpression. For example, in order to buttress the idea that the Steele dossier was central to the original application (and thus a critical tainting factor) the memo says that former FBI Deputy Director Andrew McCabe had testified that “no surveillance warrant would have been sought” without Steele.
This is potentially explosive. It is meant to leave the impression that Steele was the central, critical basis for the probable cause submission to the FISA court. But that isn’t what the memo says. What it actually says—a much better reading (one likely to be borne out when the transcripts are eventually published)—is that McCabe acknowledged that the Steele dossier was part of the impetus for seeking the warrant—which is not the same thing as saying it was the probable cause basis for obtaining it.
Perhaps even more significant is how the memo tries to bury the admission deep in the document that the entire FBI counterintelligence investigation of Russian influence was not triggered by the Steele dossier. Instead, as the memo admits only in its final paragraph, it was information about another Trump campaign adviser, George Papadopoulos, and his meetings that began the inquiry.
Given that the investigation began from a different source, it is almost certain that the motivations behind the Steele dossier were irrelevant to the FISA court—judges routinely grant warrants based upon information provided by sources who have an ax to grind. The question is whether or not the information is corroborated. (As one wag put it, it only matters that someone told the FBI Page was talking to the Russians—it could have been Stormy Daniels for all they cared, so long as they could corroborate the information.) Here, we will not know unless and until the full FISA application is unsealed, but it is notable that the Nunes memo nowhere says that the Steele dossier was the exclusive basis for the FISA application and acknowledges the existence of other information. So, there are reasons to think that Steele’s alleged bias played no significant role in the FISA process. All of which doesn’t mean that everything in the Steele dossier is true. But his alleged bias doesn’t necessarily ruin the credibility of his research.
Much of this is speculation of course—and we may never know the full truth since the complete FISA application from October 2016 is likely never to see the light of day. But even on the limited data we have in the Nunes memo—and even disregarding any concern that the memo was motivated by partisan purposes—it simply doesn’t prove misconduct, much less game-changing misconduct by the FBI or DOJ.
Paul Rosenzweig is senior fellow at the R Street Institute. Twenty years ago he served on the staff of the Whitewater investigation of President Bill Clinton.
Former Trump campaign adviser Carter Page bragged that he was an adviser to the Kremlin in a letter obtained by TIME that raises new questions about the extent of Page’s contacts with the Russian government over the years.
The letter, dated Aug. 25, 2013, was sent by Page to an academic press during a dispute over edits to an unpublished manuscript he had submitted for publication, according to an editor who worked with Page.
“Over the past half year, I have had the privilege to serve as an informal advisor to the staff of the Kremlin in preparation for their Presidency of the G-20 Summit next month, where energy issues will be a prominent point on the agenda,” the letter reads.
Page is at the center of a controversial memo from Republican Congressman Devin Nunes, released this week. The Nunes memo claims that in Oct. 2016 the FBI improperly received court permission to spy on Page, whom Trump had named as an adviser to his campaign in March 2016. The Nunes memo says the FBI based its request for eavesdropping permission on information provided by former British spy Christopher Steele while Steele was working for Democrats.
House Democrats, the FBI and the Justice Department have all raised questions about what they say are omissions and misleading analysis in the Nunes memo. They argue the FBI presented multiple pieces of evidence, beyond the Steele dossier, in their request for a warrant against Page from the secretive FISA court. But President Donald Trump argued after declassifying the memo that it showed that “a lot of people should be ashamed of themselves.”
At the heart of the debate is the question of who, exactly, is Carter Page. Trump’s defenders argue that he was simply a low-level consultant to the campaign who has overstated his role as an adviser as well as his Russian contacts. The Steele dossier claims that during a trip to Moscow in July 2016, Page held secret meetings with a senior Kremlin official and a senior Putin ally that included conversations about helping Trump and hurting Hillary Clinton in the presidential campaign. The Steele dossier does not identify its sources and Page has denied any wrongdoing.
In interviews with reporters over the past year, Page has given inconsistent accounts about his contacts with the Russians.
In January 2013, Page met a Russian diplomat named Victor Podobnyy at an energy conference in New York City, according to court documents. The two exchanged contact information, sent each other documents on energy policy and met several more times to discuss the topic, the documents allege. Two years later, in January of 2015, Podobnyy was charged in absentia — along with two other Russians — with working as a Russian intelligence agent under diplomatic cover.
Court records include a transcript of a conversation where Podobnyy talks about recruiting someone named “Male-1” by making “empty promises” about “connections in the [Russian] Trade Representation.” Page now acknowledges that he was “Male-1.” Podobnyy and one of the Russians had diplomatic immunity and left the U.S. The third Russian was arrested and eventually expelled from the U.S. in April 2017.
In messages to TIME after the Nunes memo was released, Page said that in the first nine months of 2013 he “sat in on and contributed to a few roundtable discussion with people from around the world.” He said the meetings started when one of Russia’s representatives was in New York at the United Nations. He provided an April 15, 2013, briefing document authored by Russian trade diplomat, Ksenia Yudaeva, on Russia’s priorities for a summit of the 20 richest countries in the world to be held in St. Petersburg in Sept. 2013. Page says he had subsequent similar meetings, describing them to TIME as “really plain-vanilla stuff.”
Says Page, “Does that make me an evil villain, as some of your sources would like to have you think?” Page has not been charged with any crimes.
In June 2013, the FBI interviewed Page regarding his contacts with the Russians, Page says. The FBI believed that Russian intelligence services had attempted to recruit Page as an agent with promises of business opportunities in Russia, according to the 2015 court documents.
Page told the FBI at their June 2013 meeting that the officers might better spend their time investigating the Boston Marathon bombing, which had occurred the previous April, according to a letter Page sent to Democrats on Nunes’ committee last May. Page says that thereafter the FBI began a retaliatory campaign against him. According to published reports, the FBI obtained a first FISA warrant to eavesdrop on Page’s electronic communications during 2013. And they have been paying attention to him, on and off, ever since.
Read More: What Is the Trump Dossier?
Two months after his meeting with the FBI, Page sent the letter claiming to be a Kremlin adviser. In addition to his work as an energy consultant, Page has studied and written on Russian affairs, and had submitted a book for publication by the academic press. Page felt frustrated by the fact that he had revised his manuscript about Russian relations is Central Asia and it had not been reviewed again, according to the editor who has worked with Page in the past and who requested anonymity due to the confidential nature of the matter.
The letter to the manuscript reviewer is not the first example of Page touting his relationship with Russia. McClatchy reported last year that in 2008, the U.S. Embassy in Turkmenistan sent a cable to the U.S. State Department describing how Page had met with government officials in the country, which was formerly part of the Soviet Union, about possibly working for their oil companies. The cable described how he touted his work with the Russian-run company Gazprom.
The editor said that Page’s views on Russia were notably different from other scholars. “He wanted to make the argument that we needed to look more positively at Russia’s economic reforms and Russia’s relationship with Central Asia,” says the editor. “I didn’t think it was so weird, it was just contradictory to most mainstream Russian specialist’s views.”
The editor thinks Page was ultimately harmless in terms of national security threats. “I would never have seen him in the center of concern like this, or playing a role or being seen as an intermediary between the Russian government and a political candidate,” the editor said. “He struck me just as someone who had developed some strange academic views … and wanted to have them published,” the editor says.
“I just came to see him as a kook,” the editor says.
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