(THREAD) BREAKING: Over DOJ and FBI objection, the Nunes Memo—compiled by GOP staffers of the House Permanent Select Committee on Intelligence—has been released by Trump and Nunes. Here's my analysis of it—as an attorney and someone who's researched the Steele Dossier for a year. 
1/ First, here's a link to the controversial document—a document whose release required Nunes to invoke a HPSCI rule never used in *40 years*, and required a sitting president to go to war against his FBI for the first time since the FBI was led by Hoover. docs.house.gov/meetings/IG/IG…
2/ Second, understand that it's common practice in the justice system for law enforcement to use informants who have conflicts of interest to secure a warrant. Here, the informant, former MI6 Russia desk chief Chris Steele, didn't know who his client was and had no such conflict.
3/ Third, understand that the CIA told the BBC in January '17 that the most controversial allegation in Steele's dossier—the allegation the Kremlin has blackmail material on Trump of a sexual nature—was true. This means the CIA had likely told the FBI the same many months before.
4/ Fourth, understand that the FBI had information beyond the information in the Steele Dossier when it secured a FISA warrant on Carter Page, and that the warrant went through judicial review, and that it was renewed multiple times because it had yielded actionable intelligence.
5/ So the context for the Nunes memo is this: a fairly routine informant practice was—as part of a larger stock of information—used to meet the relatively low standard of proof required to get a FISA warrant from a federal judge.
The warrant then produced *spectacular* results.
The warrant then produced *spectacular* results.
6/ Indeed, the man against whom the warrant was directed, Page, turned out to have lied repeatedly to the public about his many contacts with Kremlin officials and Kremlin-connected Rosneft executives.
So there was ample reason for the FBI to suspect him of being a Russian spy.
So there was ample reason for the FBI to suspect him of being a Russian spy.
7/ The DOJ has consequently called release of this memo by Trump and his GOP applies in the House—especially in the absence of the context a corresponding Democratic memo (blocked by Nunes) would have offered—"extremely reckless." The FBI has said the memo poses "grave" dangers.
8/ The general consensus in the intelligence and national security communities has been that the Nunes Memo, if it's as described, is inaccurate, misleading, partisan, and most importantly endangers—in a historic way—ongoing FBI investigations and FBI sources, methods and agents.
9/ Trump nevertheless promised release of the memo without even reading it. Nunes, a known Trump agent in Congress—who's worked with the White House on similar political stunts in the past, and in a clandestine way—blocked Wray and Rosenstein from making their case to the HPSCI.
10/ Enough background: on to the Nunes Memo.
11/ First, this is a partisan document: Page is described as a "volunteer advisor" to the Trump campaign, suggesting Trump had no involvement in his participation in the campaign. In fact, Trump asked him to join, and named him to, his NatSec team—one of the first five men named.
12/ Second, note the focus: a late October '16 FISA warrant, not—or not yet—the early July '16 one that's been much discussed. By late October '16, the FBI had a *great* deal of information on Page that would not have come directly from Steele (as might've been the case in July).
13/ Recall that the former CIA Director was telling law enforcement and members of Congress throughout the summer of 2016 that, per allied intel agencies, Trump aides were meeting Russians in foreign cities. Page had traveled to Moscow under unusual circumstances in July of 2016.
14/ The early part of the memo is just laying out who signed warrant applications and re-applications (at various points, Comey, McCabe, Rosenstein, Yates, and [Dana] Boente). No news here.
15/ Media will be checking up on the legal credentials of the authors of this memo, who are (at least in part) known. And they'll be doing that because, by the bottom of the first page, the memo has already veered into legal fantasy. Legally, the memo is a nonsense. I'll explain.
16/ It says FISA warrant applications must meet the "highest standard" of proof in the justice system. Uh, no. The "highest standard" in the justice system is "proof beyond a reasonable doubt," which is nowhere *close* to the legal standard required to secure a search warrant.
17/ The legal standard for securing a warrant is the *lowest* standard of proof in the law—"probable cause." (Consider: *indictments* require probable cause, which is why they say "the average grand jury would indict a ham sandwich.")
FISA warrants are granted in 99%+ of cases.
FISA warrants are granted in 99%+ of cases.
18/ As @AshaRangappa_ notes, the specific FISA standard is "probable cause that the target is an 'agent of a foreign power' who's 'knowingly engaging in clandestine intelligence activities.'" Remember: the FBI already found that—as to Page—in a 2013 probe. justsecurity.org/39886/high-bar…
19/ In '13, the FBI suspected Page of being a Russian spy—18 months before Trump announced his presidential run—because Page was meeting with a known Russian intelligence agent who was ultimately convicted of trying to recruit Americans. Page admitted he was a recruitment target.
20/ So given that FISA warrants require the lowest standard of proof in the law, and FISA warrants are granted in 99%+ of cases, the idea that the FBI would have needed Steele at *all* to meet that standard and get that warrant as to Page is—to some degree—*literally* laughable.
21/ The memo then makes *another* error of law on its first page: saying the law requires "all relevant and material facts" to be shown to a warrant-granting court. But that's not true. Many cases confirm that law enforcement can and does leave out key facts without repercussion.
22/ If you doubt this, check out the work of Orin Kerr, who's done a lengthy analysis of the case law on this very issue (which is clearly something that the Nunes staffers working on behalf of Trump and Nunes did *not* do): lawfareblog.com/dubious-legal-…
23/ A *third* legal error on just the *first page* of the memo is it says "all potentially favorable" information—i.e., favorable to the proposed warrant target—must be included in the warrant application. Uh, no, and moreover, this *never* happens in the criminal justice system.
24/ Because we have an adversarial system of justice, and because the standard of proof to secure a warrant is so low, judges *never* expect (and almost *never* find) that the government included "all information potentially favorable to the defendant" in its warrant application.
25/ Let me be blunt, law-and-order types: if our justice system worked the way the Nunes Memo says it does—thank god it doesn't—our crime rate would be ten times higher and our criminal justice system wouldn't have the resources to operate. Jail doors would have to be flung open.
26/ Page 2 is worse. It says Steele prepared the dossier "on behalf of" the DNC and Clinton—suggesting he knew he was working for them, or that he *was* working for them, which he wasn't. He was working for Fusion GPS as a sub-contractor—and had no idea who Fusion's clients were.
27/ This is a critical point—as this lie is the one Nunes uses to argue that Steele both had a conflict of interest and was biased, when in fact neither was true. Steele was not getting paid to please the DNC and/or Clinton because he literally did not know his work was for them.
28/ Second lie: that Steele was paid by the DNC and/or Clinton. Totally false. Steele was paid by Fusion GPS and did not know who Fusion was working for. Fusion was paid by a law firm, which in turn was paid by the DNC. But Fusion had previously worked for GOP clients on Trump.
29/ Indeed, Fusion worked for GOP clients—digging for info on Trump—for *eight months*. Fusion had worked for a Democratic client for just 30 days when its sub-contractor (Steele) said, without knowing who Fusion's client was, that he wanted to go to the FBI with his information.
30/ In other words, this memo is written like a campaign ad—not an official document, and *certainly* not a legal document. It gets every fact wrong and every point of law wrong and *wildly* so. This is an embarrassing piece of work, but I'll keep on analyzing it anyway. We must.
31/ The memo calls Steele a longtime FBI "source"—trying to make it sound like he makes money by feeding the FBI information. No, he's a longtime FBI *partner* and has helped the FBI crack cases. Moreover, he was *not* hired to find "derogatory" information on Trump—that's false.
32/ Fusion GPS founder Glenn Simpson—a longtime journalist for the conservative Wall Street Journal—testified before Congress (where it's a crime to lie, and Simpson knew it) that he did *not* direct Steele to find derogatory information on Trump's ties to Russia, but *any* info.
33/ The memo next says the FBI was obligated to disclose the Fusion-Perkins Coie contractual relationship in citing work *Steele* did—without knowing who he was doing it for—even though the FBI had independent corroboration of Steele's credibility and this particular work anyway.
34/ Spoiler alert: *nothing* in the case law supports this contention from the memo. The FBI had absolutely *no* obligation to talk about Fusion and Perkins Coie in analyzing or employing work by the former Russia desk chief of MI6, who didn't know who his client was at the time.
35/ Let me be even clearer on this point: of all the informants the FBI has ever used, someone in Steele's situation and with his background undoubtedly falls into the *top 10% of most reliable and non-conflicted* FBI sources. To imply otherwise is—as I said earlier—a *fantasy*.
36/ Here's where the memo rides the line between *simply* lying and expressing consciousness of guilt over its own lying. It concedes Steele was "ultimately" working on behalf of the DNC—i.e., indirectly—and that the FBI had "authorized" payment to him (but did not make it). Ugh.
37/ Remember, all this is happening in late October 2016, more than two months after the intelligence community had briefed Trump on Russia (which Page had recently traveled to, having been suspected of spying for them before) being behind the attack on the United States.
38/ Moreover, this is all happening over three months into the FBI's Trump-Russia investigation—so the idea that the only thing the FBI had done in over three months is stare unblinking at a few Steele memos is, again, laughable. There was a widespread probe going on at the time.
39/ The article next indicates—and mind you, reports say the authors of the memo *haven't* seen the underlying intelligence packet whose insufficiency they're decrying—that the FBI used a Yahoo! article to confirm the Steele Dossier, though Steele was the source for the article.
40/ Whether or not the FBI cited Yahoo! and whether or not it claimed it as "corroboration," the point made here is immaterial—as anyone reading the Yahoo! article would reasonably conclude Isikoff's source was the same source that had produced the dossier. It's not hard to see.
41/ More importantly, in making this claim the memo *offhandedly* asserts that Steele met with Perkins Coie "in 2016"—we don't know when, and there's no corroboration for the claim—which is such a key point here that the idea that it's thrown in as an aside is... *unbelievable*.
42/ We now know—via Glenn Simpson's testimony—that Steele went to the media in September 2016 because the FBI had taken no action on his whistleblower information since June. He then went back to the media in October, when the FBI told the NYT there was no evidence against Trump.
43/ In other words, Steele—per Simpson—began to suspect a coverup at the FBI to protect *Trump*, much like we have evidence (audio, video, emails, tweets) that there was a coverup at the New York field office to protect Trump and harm Clinton over the "new" emails on Weiner's PC.
44/ So the Republicans can whinge about Steele going to the media as much as they like—it only hurts *Trump*, as it re-opens media consideration of the pro-Trump conspiracy at the FBI that Chris Steele (as we now know, *justly*) was concerned about during the latter half of 2016.
45/ The memo claims Steele lied to the FBI about his media contacts—which makes no sense, as his two contacts with the FBI pre-election *both* came before he'd briefed the media about his research. So the question to ask here is, *when* is the memo saying Steele lied to the FBI?
46/ This matters, as Trump allies in Congress have made a criminal referral on Steele *because* of this (timeline-nonsensical) claim that Steele lied to the FBI about his media contacts *prior* to the election—and was "suspended" (whatever that could mean) by the FBI as a result.
47/ But wait—it gets better. The allegation that Steele was "suspended and then terminated" by the FBI—which again, makes no basic sense because he *wasn't working for or paid a salary by them*—must also be false, because he was still having FBI contacts in December 2016. So...?
48/ Indeed, it was in December 2016 Steele managed to get his dossier—with the help of an FBI friend—to a British diplomat, who got it to McCain, who got it to James Comey. So the idea Steele was cut off from the FBI, or that the FBI didn't trust him post-election, is nonsense.
48/ My favorite part is this: the memo says Steele's trepidation about a possible pro-Trump conspiracy in the FBI—which we now know existed—and his subsequent conversations with media *retroactively rendered his research unreliable*. But it doesn't work that way—for many reasons.
49/ First, the FBI had worked with Steele for years—he helped them get the bad guys on several major cases, most notably on FIFA corruption. So the idea that his mistrust of some rank-and-file FBI agents he'd talked to—which led to media contacts—rendered him unreliable is crazy.
50/ Moreover, Steele ultimately got his Dossier to Comey—and the *mere fact that Comey hadn't already seen it confirms that it was being kept from him by some rank-and-files*.
Let me repeat: the facts in the memo *underscore* a pro-Trump plot at the FBI among some rogue agents.
Let me repeat: the facts in the memo *underscore* a pro-Trump plot at the FBI among some rogue agents.
51/ The content of the Steele Dossier—beginning on *Page 1*—was so explosive that the fact that it didn't get to the Director of the FBI for *six months* is *proof* that Chris Steele is a very, very good spy: he correctly sussed out a rogue-agent FBI conspiracy months in advance.
52/ That pro-Trump conspiracy among some rank-and-file agents—*rogue* agents—in the New York field office of the FBI was *confirmed* when, immediately before the election, those agents told the New York Times that the FBI had nothing on Trump. When in fact they had the Dossier.
53/ I now have new favorite part: Page 3, which argues that Steele's desire that Trump not be elected—as expressed in *September '16* (note the date)—proves his research was biased. Does the GOP realize the info Steele had by September? Of *course* he didn't want him to be POTUS!
54/ Just because the GOP has rejected Steele's research doesn't mean that *Steele* is obligated to: indeed, him telling a DOJ attorney he didn't want Trump to be president in September '16 is *confirmation* that—and this seems important—he *believed his research to be accurate*.
55/ So there's a trend: everything the memo says discredits Steele a) confirms his integrity and the veracity of his research or b) directs the media quite forcefully to investigate the pro-Trump conspiracy at the New York field office of the FBI that Steele was so worried about.
56/ Bruce Ohr—a DOJ attorney—having a relationship with Steele based on prior cases Steele had assisted the DOJ with *isn't* suspicious. It's a professional relationship—so when Steele wanted to become a whistleblower on Trump-Russia ties, of *course* he contacted people he knew.
57/ The first at *all* troubling thing in the memo comes immediately hereafter on Page 3: the revelation that Bruce Ohr's wife was conducting opposition research on Trump, presumably for money, and that she passed this information to her husband, who then passed it to the FBI.
58/ Here's the problem: Ohr's wife is allowed to do work for Fusion and to be paid for it. At the time she began, it almost certainly wasn't a conflict—as Ohr wasn't working on the Trump investigation at that point. But what does she do when she finds out scary stuff about Trump?
59/ According to the memo, Mrs. Ohr had two options: bury the incriminating intel about Trump that she'd found, even though her duty as a citizen militated otherwise, or give the information to someone at DOJ who *wasn't* her husband—without telling her husband. Sound reasonable?
60/ Upshot: Trump either did a ton of criminal things—right up to the level of Treason, if just shy—or a lot of previously reliable sources worked their *asses* off to make Steele and Ohr think so. But once Steele and Ohr had that info, what the *hell* were they *supposed* to do?
61/ Either Trump did the things the Dossier says, in which case *he* put Steele and Mrs. Ohr in impossible situations, or Steele and Ohr were Good Samaritans caught in a trainwreck of the Kremlin's devising. What possible read of things has them as nefarious actors? Answer: none.
62/ The memo next plays word-games with the FBI's assessment that, during the early FISA warrants on Page, the Steele Dossier was either in its "infancy" in terms of being fact-checked or had been "minimally corroborated"—which simply means the FBI needed more time to fact-check.
63/ The memo is playing word-games because everything the FBI *could* verify at the time, it appears to have verified—perhaps with the same help the CIA gave the BBC, as to Page 1—so it trusted the work. So that the fact-checking wasn't *complete* is a separate matter altogether.
64/ Moreover, the memo continues to use a presumption of its own veracity as the foundation for its argument: a tautology.
For instance, how do we know the FBI relied exclusively on Steele's research for its FISA warrants? Because the very memo we're writing right now says so.
For instance, how do we know the FBI relied exclusively on Steele's research for its FISA warrants? Because the very memo we're writing right now says so.
65/ McCabe saying the Dossier was necessary but not sufficient to a warrant app is—given the probable cause standard—entirely reasonable (in fact, might suggest abundance of caution). Steele did *not* have "anti-Trump financial and ideological motivation"—*that's* a flat-out lie.
66/ Finally we come to Page 4—the last page—in which the memo *finally* acknowledges that the FBI had begun its investigation and sought a FISA warrant in *June*. This is buried at the back of the memo because it's a really, really, really bad argument for Donald Trump—and *how*.
67/ Carter Page and George Papadopoulos were named by Trump to Trump's national security team on the same day—and were in communication with one another via email strings between/among the national security team during the campaign—so of *course* Papadopoulos is relevant to Page.
68/ So the memo underscores that the FBI had intel *besides* its info on Page when it sought its Page warrant—including what the CIA may have told it, what the CIA certainly told Congress, Page's prior Russia contacts, and *also* what the Australians had said about Papadopoulos.
69/ The final, wheezing gasp of this rather rancid bit of partisan posturing comes in the form of a mention of Peter Strzok's supposed pro-Clinton bias—even though we *now* know Strzok urged Comey to *re-open* the Clinton case, which cost her the election.
So there goes *that*.
So there goes *that*.
70/ Look, anyone who actually knows a lot about this investigation can see immediately this "Nunes Memo" is a dirty dinner napkin—zero value. If Trump takes *any* action as a result of this memo, it's wholly pretextual and—under the circumstances—likely illegal. Be prepared. /end
PS/ I really want to hammer home a point: the sum total result of this memo is a catastrophic *underscoring* of how bad a situation this is for Trump and how *little* bias—to be clear, zero—was involved in his treatment by the FBI. This memo *supports* Trump critics' contentions.
PS2/
