Commentary: Let's parse what Trump is telling us about the Nunes memo
President Donald Trump, paving the way for the harshly criticized memo drafted by conspiracy-mongering House Intelligence Committee Chairman Devin Nunes, R-Calif., tweets: "The top Leadership and Investigators of the FBI and the Justice Department have politicized the sacred investigative process in favor of Democrats and against Republicans - something which would have been unthinkable just a short time ago. Rank & File are great people!"
Let's parse that a bit.
First, contrary to the protestations of Speaker of the House Paul D. Ryan, R-Wis. - who seems to be getting awfully nervous about his role in allowing the intelligence community to be smeared - Trump does believe (and was motivated by the notion) that the use of the Steele dossier in the FISA process means the entire FBI and Justice Department leadership, including those he appointed, are corrupt.
How could he have appointed such corrupt people, e.g. Attorney General Jeff Sessions, FBI Director Christopher Wray or Deputy Attorney General Rod Rosenstein? And if they are corrupt, why is he not firing them? For those who have now been smeared, there are three options: Quit, rebuke the president or remain silent. Unless they choose the latter, Trump may be setting off a firestorm he cannot contain.
Second, Trump is now putting in writing (at least in pixels) what he has told aides privately, namely that the release of the memo is intended to discredit and therefore undermine the investigation. Not unlike his statement to NBC's Lester Holt that he fired FBI Director James Comey because of the Russia investigation, this amounts to a confession of a corrupt motive.
Reports suggest that Trump never seriously considered holding back the memo despite the national security concerns of his appointees. That was apparently immaterial to Trump. If you're looking for an intent of obstruction or witness-tampering charge, you are not going to get much better than the evidence coming straight from Trump. He, of course, will be asked in an interview with special counsel Robert Mueller III how the decision was made, who was involved in the discussion and what his motives for doing so were. If he lies to Mueller, he's compounding his legal problems.
Third, if Nunes or Nunes' staff cooperated or consulted with - colluded with, that is - the White House in cherry-picking classified material for the purpose of hobbling the investigation, they are party to an ongoing plan to obstruct the Russia investigation. Whether that has criminal implications remains to be scene. But they now need to be questioned by the special counsel. If they lie, they are subject to criminal prosecution. Nunes' staff has no "speech and debate" protection, so anyone involved in this scheme would be well advised to lawyer up.
Fourth, while the Trump-Nunes smear campaign will sway the Kool-Aid drinkers who watch hour after hour of Fox News, for sentient observers, Trump and Nunes' "theory" makes zero sense. University of Southern California law professor Orin Kerr explains on Lawfare:
"First, you need to know all of the facts claimed in the Carter Page FISA affidavit to know if disclosing the funding source of the Steele's research was even remotely relevant. My understanding is that FISA applications like this are rarely close calls. DOJ usually gives the (Foreign Intelligence Surveillance Court) way more than probable cause. (At least that's my understanding: I was at DOJ and applied for warrants and a Title III order way back when, but I haven't done any FISC work.) If that's right, it means that Steele's research may have been included in the affidavit amidst a ton of other evidence. And if so, the Steele research itself may have been wholly irrelevant to the application. It's hard to see any significance to whether the funding source of irrelevant research was included. ...
"Second, even if the Steele research was a major part of the affidavit, whether the funding source would need to be disclosed depends on whether it critically altered the case for probable cause. Some of that would depend on whether the Steele research was corroborated. If the government looked into the Steele memorandum and corroborated some of its claims, it undercuts the need to disclose the funding source. ...
"To my knowledge, Steele was not some random person motivated by an ongoing personal feud against Trump or Carter Page. ... Instead, Steele was a former MI6 intelligence officer and Russia expert. He was hired to do opposition research because of his professional reputation, expertise and contacts. And his work was apparently taken pretty seriously by United States intelligence agencies. Of course, that doesn't mean that what's in the dossier is true. Maybe the key allegations are totally wrong. But if you're trying to argue that Steele's funding sources ruin the credibility of his research, his professional training and background make that an uphill battle."
The bottom line: Nunes has cooked up a theory so weak he had to cherry-pick from classified documents to make an allegation (that the dossier polluted the investigation) that is probably disproved by documents he won't release. If there were ever someone entirely unfit to see classified information, it is Nunes. Ryan's continued indulgence will, for the foreseeable future, leave the GOP open to the claim that members are reckless with national security and unfit to handle classified material.
Author information: Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.