The Nunes memo was released Friday, and it was about what we expected: It argued that the Steele dossier and other biased information provided the justification for surveillance of former Trump campaign adviser Carter Page. The clear implication: The whole thing shows law enforcement is tainted.
Some of the central facts are in dispute — most notably the memo’s claim that the dossier was “essential” to the FISA application — but for now we’re probably in about the same spot we were before, with 43 percent of the country believing the Russia investigation is a witch hunt, and a majority believing its important.
But there is plenty left to play out here — and plenty of unanswered questions about the Nunes memo. Below are four of them:
1. What did McCabe actually say about the Steele dossier?
This might be the most consequential dispute involving the memo. Its authors — staff for House Intelligence Committee Chairman Devin Nunes (R-Calif.) — wrote this: “Furthermore, [FBI] Deputy Director [Andrew] McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.”
This seems to be the basis for the memo’s controversial claim that the dossier, authored by former British spy Christopher Steele, was “essential” to the FISA application. FISA applications are rigorous and generally require lots of evidence, so the idea that the dossier was so integral is very much in question. But McCabe saying such a thing would certainly lend credence to the claim.
Here’s the thing, though: Whatever McCabe said was behind closed doors in a private hearing of the House Intelligence Committee. What’s more, the memo for some reason doesn’t give his direct quote. So we’re left to rely upon the authors’ paraphrasing of what McCabe said. (Which is a little weird, if I’m honest!)
Democrats quickly cried foul. A Democrat on the intelligence committee, Rep. Eric Swalwell (D-Calif.), said the memo “seriously mischaracterizes the testimony of Deputy Director Andrew McCabe and the FISA application.” Others quickly called for a transcript of the McCabe hearing and/or that specific section of it.
It would seem difficult for Republicans to resist that pressure. There really doesn’t seem to be any reason to paraphrase what McCabe said but not be able to quote him. If the quote comes out and it turns out the paraphrase was misleading, the entire memo will be undermined. If the paraphrase is accurate, it bolsters the GOP’s argument.
2. How does law enforcement respond to the arguments about the FISA process?
Much of the memo is devoted to explaining things that weren’t disclosed in the FISA application — mostly, (a) that the Steele dossier was funded by the Democratic National Committee and the Hillary Clinton campaign and (b) that Steele was a biased and untrustworthy person (and so were others involved).
It bears noting, though, that the FISA application did disclose that some of the information was paid for by a political entity, as The Post's Ellen Nakashima reports. It’s also difficult to imagine a judge looking at a document like the Steele dossier and not assuming it was opposition research from Donald Trump’s opponents; almost all of the information is derogatory about Trump and his campaign. Both of these issues would seem to be justification for releasing the House Intelligence Committee's Democratic rebuttal memo, but the House Intelligence Committee voted not to.
The GOP memo does make some other notable claims, though, including that Steele met with Yahoo News but that the application “incorrectly assesses that Steele did not directly provide information to Yahoo News.”
Republicans seem to be arguing that the FISA process should have been more interested in the actual actors behind the dossier. But since FISA applications are handled behind closed doors and we don’t have the actual documentation, we simply don’t know how all of this played out.
3. How do Republicans account for their own timeline?
As The Washington Post's Karen Tumulty and Rosalind S. Helderman wrote Friday, the final point in the memo would seem to risk undermining the Republicans’ case. In Point No. 5, the memo confirms Trump campaign adviser George Papadopoulos set the Russia investigation in motion months before the Page FISA application in October 2016, thanks to his loose lips in a London bar:
Democrats quickly seized on that sentence to assert that the Republicans’ own memo shows that the Russia investigation would be underway with or without the surveillance of Page, and — more critically — even if the government had never seen a dossier of information about Trump that was compiled by Christopher Steele, a former British spy.
To be sure, this doesn’t necessarily disprove the idea that anti-Trump bias or other alleged abuses could have featured in the investigation after Papadopoulos set it off. But it does confirm that the investigation wasn’t predicated upon a partisan document — that there was something else that got the ball rolling on all of this, including the Page FISA warrant. And if the idea was to undermine the entire Russia investigation, that would seem to be a hole in the argument.
Even Rep. Trey Gowdy (R-S.C.), the former head of the House Benghazi committee who announced his retirement this week, suggested the memo had no bearing on special counsel Robert S. Mueller III's probe.
4. Will Trump try to fire or force out Rosenstein?
Just before the memo came out Friday, Trump was asked in the Oval Office whether he was going to fire Deputy Attorney General Rod J. Rosenstein. “You figure that one out,” he said.
We’re sure as heck trying to figure it out. What we can say is this: Rosenstein oversees the Russia investigation, and getting rid of him could mean someone more loyal or sympathetic to Trump is put in that job — at least theoretically. Trump has also repeatedly derided Rosenstein both publicly and privately, suggesting he’s “a Democrat” and arguing he’s a threat to Trump’s presidency. And for a president who fired James B. Comey as FBI director and tried to fire Mueller, it seems only logical that Trump wants to get rid of Rosenstein, too.
The memo notably outlines five people who signed off on FISA applications for monitoring Page. Two of them have been fired by Trump (Comey and former acting attorney general Sally Yates). One of them resigned last week (McCabe). One of them switched jobs recently (Dana Boente, who became general counsel for the FBI).
The only one listed who hasn’t departed? Rod J. Rosenstein. The plot thickens.