If the allegations in the memo are true, it would amount to a remarkable level of conspiracy within the FBI and the court system that approves the spying. And if you think the FBI is rebutting the memo as a cover up, then you'd have to believe nearly the entire agency and the court system, which approves the spying, is in on the game.
“You’d have to believe a federal judge would be on board and willing to look the other way and be bamboozled by a fake affidavit,”said Asha Rangappa, a former FBI special agent now at Yale University. “You are going down a road where you are discrediting an entire system of government.”
That is just one of the reasons legal experts say we all should be very skeptical of what’s in this memo.
Here are four other claims believed to be in the classified memo that legal experts say are suspect.
Claim No. 1: The FBI relied on bad intel to spy on the Trump campaign: The House Intelligence Committee is doing its own parallel investigation into Russia interference in the 2016 election. Staffers for the chairman of that committee, Rep. Devin Nunes (R-Calif.), put together what they claim is a compelling case that the FBI relied on information from politically motivated individuals when it requested a warrant to spy on a Trump campaign official, Carter Page, during the campaign.
The fact the FBI was spying on a member of a presidential campaign is a big deal. It suggests they had reason to believe Page was in contact with Russians while he worked for Trump.
Reason to be skeptical of the memo’s claim the FBI had bad intel: The FBI cannot just spy on anyone it wants to for any reason. Agents have to go to a secret court and present their evidence, and get approval from the court every 90 days or so to keep spying.
Rangappa said the process involves at least a dozen people, including federal judges whose job it is to scrutinize whether the warrant is yielding relevant and legitimate information to the FBI’s case. “Are they going to suggest the FBI was literally fabricating communications?” she said of the memo. “It’s starting to get into an area of absurdity.”
Claim No. 2: A dossier the FBI relied on was politically motivated: We have since learned that part of the FBI’s interest in the Trump campaign came from a dossier alleging Trump campaign-Russia collusion that singles out Page as a potential intermediary between the Trump campaign and Russia.
Trump and his Republican allies in Congress have seized on the fact that this dossier was being funded by Democrats to get dirt on Trump. It is not too hard to connect the dots to arrive at this line of thinking from Trump allies: The FBI, which Trump appears to think is working against him, started spying on the Trump campaign after relying on information from people who were paid to get dirt on Trump.
But: The Trump digging by a research firm that ultimately produced the dossier was originally commissioned by a conservative website, which is run by a GOP donor. (Though the dossier itself didn't take shape until Democrats started funding the research.) The company behind the dossier testified to Congress that ex-British spy Christopher Steele’s report isn’t fake, was not politically motivated and did not set out with the intention to smear Trump, least of all to find collusion.
Another but: Talking about how the FBI got the information is a distraction from what agents found, Jens David Ohlin, a dean at Cornell Law University, told The Fix in an email: “Consider an analogy. Say there’s a murder in a small town and the police aren’t making any progress. In frustration, the family of the victim hires a private investigator who turns up evidence and gives it to the police. What should the police do? Answer: They should act on it if there’s something there.”
Claim No. 3: Deputy Attorney General Rod J. Rosenstein is at fault: The New York Times reported the memo reveals Rosenstein approved extending the surveillance of Page.
But: Given Trump’s clear desire to end the Russia investigation (and that he considered firing special counsel Robert S. Mueller III), it is fair to ask if this memo is in service of that goal. “This is a subtle way of attacking Rosenstein, who oversees Mueller in this investigation,” said white-collar lawyer Jeffrey Jacobovitz. Trump has gone after Rosenstein before, in a cryptic way.
Sure enough, The Washington Post reported over the weekend that Trump has looked for ways to get rid of Rosenstein.
But Rosenstein had nothing to do with the original surveillance order. Rangappa points out the surveillance of Page started well before Rosenstein was the No. 2 at the Justice Department.
One other reason to be skeptical of the memo: So far the only people who think the memo should be publicly released are people who have derided the Russia investigation. The Post reported Trump himself tried to get the memo released, which the Justice Department pushed back on as “extraordinarily reckless” because it could reveal U.S. intelligence gathering methods.
“You have Nunes, allegedly Trump, Sean Hannity and Donald [Trump Jr.] wanting to release it,” Jacobovitz said, “and you have the Department of Justice on the other side not wanting to release it.”
And now, the FBI, which is very publicly calling into question the memo's credibility, accuracy and legitimize.
Correction: An early post incorrectly said the dossier was originally funded by a conservative website. That website has said none of the research it paid for eventually ended up in the dossier.