The Washington Examiner’s Byron York, for example, insists that the Nunes memo does not condemn the FBI as an organization but, rather, “the FBI leadership’s conduct in the Trump campaign and Clinton email probes.” He notes:
In the case of the much-discussed House Intelligence Committee memo released last week, Republicans (accurately) portrayed an FBI leadership that made common cause with an opposition research project paid for by the Clinton campaign right in the middle of a 2016 presidential election — and then ferociously resisted congressional oversight. An agency that does that can expect some criticism, if its actions ever come to light.
The Federalist’s Mollie Hemingway was equally forthright in her defense of the Nunes memo:
Is it possible to criticize a law enforcement agency without warring against the very existence of a law enforcement agency? Obviously it is. The notion that it isn’t possible is illogical and utterly bizarre, bordering on mendacious. …The [Nunes memo], which is causing alarm for millions of Americans who are not inside newsrooms or otherwise obsessed with destroying Donald Trump, is based on a lengthy investigation. It shows that the FBI took information it knew originated and was funded by the Hillary Clinton campaign and the Democratic National Committee to secure a wiretap on a Trump campaign affiliate. The report says the FBI hid the provenance of the information from the court, claimed it was corroborated by citing a news article that was itself sourced to the same campaign operation, and declined four separate opportunities to be truthful about this.
The thing is, in the days since the Nunes memo was released, Devin Nunes has done a great job of helping to discredit it.
There was already reporting over the weekend that a key passage of the Nunes memo, which both York and Hemingway referenced above, was not entirely accurate. The Washington Post’s Ellen Nakashima reported that “the court that approved surveillance of a former campaign adviser to President Trump was aware that some of the information underpinning the warrant request was paid for by a political entity.” When asked about this on “Fox & Friends” on Monday, Nunes’s answer was … um … not good:
Nunes conceded that a “footnote” to that effect was included in the application, while faulting the bureau for failing to provide more specifics.“A footnote saying something may be political is a far cry from letting the American people know that the Democrats and the Hillary campaign paid for dirt that the FBI then used to get a warrant on an American citizen to spy on another campaign,” Nunes said on “Fox & Friends.”
That “American people” line is nonsensical, since Nunes was talking about an application to the FISA court. Judges tend to read the footnotes. Jonathan Chait’s conclusion: “So now the main attack on the FBI is about font size.”
Conservatives were equally nonplussed. Consider this blog post from Hot Air:
If the FISA Court knew that the dossier was “political” and could discount its evidentiary weight accordingly, the argument that a material omission was made by the DOJ in declining to name Clinton or the DNC gets much thinner.After all, knowing that the dossier was “political,” if the FISA judge thought it was crucially important to know who had paid for it, he had an easy way of finding out. He could have asked.
The fallback objection, which other Republicans have made, is that the FISA applications should have explicitly named the researcher, Christopher Steele. But Lawfare’s Orin Kerr, one of the sharpest Fourth Amendment lawyers in the country, suggested last week that this is not the infraction Nunes thinks it is:
As a Fourth Amendment nerd, it seems to me that the premise of #ReleaseTheMemo is pretty dubious. The apparent idea is that the failure to adequately document the funding behind Steele’s work is a huge deal and a fraud on the court. But as a matter of law, that seems pretty unlikely to me. When federal judges have faced similar claims in litigation, they have mostly rejected them out of hand. …In #ReleaseTheMemo circles, any possible link between the Steele dossier and the Clinton campaign is like an atomic bomb. It completely annihilates any possible credibility the Steele dossier may have, leaving the exposed words of the dossier behind like the haunting shadows of the Hiroshima blast.But that’s not how actual law works. In the world of actual law, there needs to be a good reason for the judge to think, once informed of the claim of bias, that the informant was just totally making it up. As United States v. Strifler shows, that isn’t necessarily the case even if the government paid the informant to talk and guaranteed that they would get out of jail if they did. Nor is it necessarily the case just because the informant is in personal feud with the suspect. What matters is whether, based on the totality of the circumstances, the information came from a credible source.
So, to sum up: Within the span of 72 hours, Nunes managed to undercut the strongest allegation made in his memo.
Despite these flubs, Nunes has managed to accomplish something with this memo: He has sown GOP distrust of the FBI. In a poll it conducted with Ipsos, Reuters found, “Nearly three out of four Republicans believe the FBI and Justice Department are trying to undermine U.S. President Donald Trump … a sharp turn for a party that has historically been a strong backer of law enforcement agencies.”
According to the AP’s Deb Riechmann, the FBI’s distrust of Congress has also spiked because of the memo release:
Top intelligence and law enforcement officials warn that last week’s release of a congressional memo alleging FBI surveillance abuse could have wide-ranging repercussions: Spy agencies could start sharing less information with Congress, weakening oversight. Lawmakers will try to declassify more intelligence for political gain. Confidential informants will worry about being outed on Capitol Hill.
Oh, good, because if there was anything the United States needs right now, it is more distrust in its governing institutions.
York and Hemingway are absolutely correct to say that the FBI and Justice Department merit scrutiny and oversight. But it seems equally clear that this extraordinary action by Nunes has wreaked a lot of carnage for very little gain. Distrust is very easy to sow; it will not be recovered quickly. That same Reuters-Ipsos poll also shows that the Nunes memo had minimal effects on non-GOP levels of trust. So, basically, Nunes has managed to add the FBI to the pile of institutions that elicit partisan reactions.
Nunes has pledged to continue his probe of the FBI and DOJ without consulting the rest of his committee. He also plans to release more memos, focusing his ire next on the State Department. If these go as well as his memo, then the result will be heightened GOP distrust of government agencies and suspicion by national security officials of congressional oversight.
Who is Devin Nunes? Someone who, whether he knows it, has weaponized partisanship to erode trust in institutions vital to the national security of the United States. In offering him their unqualified support, GOP leaders such as Paul Ryan and Donald Trump are eliminating the last tendrils of trust between the governors and the governed.