The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
There are a lot of reasons why people who care about the state of this country, whatever their political stripes and persuasions, should be appalled and angry about the Nunes Affair. Here are a few of them.
You are, let us suppose, Rep. Devin Nunes. At your instigation, the Committee on which you serve as Chairman is about to release a classified memorandum that you prepared, concerning a matter of great national importance. It accuses the FBI of misbehavior in connection with the submission of FISA warrant applications in the Russia probe.
At the top of page two, the memorandum makes a single—serious—accusation: "Our findings indicate that, as described below, material and relevant information was omitted [from] the four FISA warrant applications involving Carter Page." The rest of the memo consists of five separate instance where such "omissions" occurred.
Releasing the memo is a big step, for you and for the country. You will be in the history books forever in connection with this memorandum; your grandchildren and great-grandchildren will read all about your participation in these events, and history can be a harsh and a cruel judge.
Surely, before committing yourself to such a step, you would have carefully read the underlying documents, viz. the warrant applications themselves, which constitute the evidence for the purported misbehavior. After all, you want to be as certain as you can possibly be that the information in the memo is accurate, and that you are presenting it as forcefully (and as fairly) as possible.
And surely you'll be especially diligent here, because the memo alleges omissions from the warrant applications. If the assertion were that the FBI, say, used false information in the applications, you could, I suppose—you're a busy man—content yourself with reading only those portions of the applications where the false information was provided; that would prove the case. But omissions are trickier. It's not rocket science; if you say "The car keys are not in the drawer," you have to first have looked in the drawer.
This, it turns out, he did not do. He never even saw the applications. Rep. Trey Gowdy (R-SC) was the only member of the Committee to actually examine the underlying documents that are relied on as evidence of this misbehavior. Under an agreement with the DOJ, only one member of the Committee was permitted (along with two investigators from the Committee staff***) to view the documents, and Nunes chose Gowdy for the job.
***Tangentially, that agreement between the Committee and the FBI strikes me as a bit odd. The main oversight committee in the House can't get unfettered access to classified material? I'm surprised by that, to be honest. And what's with the two "investigators" who, in addition to a single Committee member, were granted access? I do not understand the rationale for allowing staff members, but not additional Members of the Committee, to look at the applications. Perhaps some of you can enlighten me on that.
Gowdy (and the two investigators) examined the applications and then summarized their contents for Nunes and the rest of the Committee. Then, Nunes, in effect, summarized that summary in his memorandum.
Putting aside the specifics of the five supposed instances of misbehavior [you can read them here]: Wouldn't you think that Rep. Nunes would want to have actually read the documents on which this assertion is (entirely) based? Just to be sure that the information was, indeed, omitted, and not buried somewhere in the mass of material? And that it was, indeed, material to the application?
That he relied on a summary of those documents prepared by a colleague and staff for this claim—given its obvious seriousness and significance for critical questions about how our government is functioning—beggars belief. How in heaven's name can Rep. Nunes can be certain—and he damned well better be certain, given the damage he is wreaking—that information was "omitted" from a series of documents without actually having read the documents?
If this were the California Model Congress and Nunes were a high school junior, I would tell him: that's not how you do your work, not when there's a lot on the line. You're the Chairman of the Committee; get the damned documents, and make sure you know what the hell you're talking about. Summaries of summaries won't cut it. Even if you're peddling bullshit, own your own bullshit. If you want people to take seriously what you say and write, show that you take it seriously.
It's deeply disturbing, at least in my eyes—the shoddiness and the amateurishness of it all.
AND THIS JUST IN: While I preparing this posting, news arrived that Rep. Nunes has admitted that one of the purported "omissions" was, to put it kindly, bullshit. It's the very first one listed in the memo, as it happens, the real blockbuster: the claim that none of the FISA applications "reference the role of the DNC, Clinton campaign, or any party/campaign in funding" the Steele Dossier.
But in an appearance on "Fox & Friends," Nunes admitted that there was indeed a "footnote" to that effect included in the FISA application.
OOPS! See, that's why you need to actually read the documents, Mr. Nunes. Even the footnotes. I know—it's a pain. But it's part of owning your bullshit, and of not looking, in history's eyes, like a moron.
And Nunes' excuse for his, um, oversight is truly laughable. Yes, the information was in there, but only in a footnote, which 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." Apparently, he forgot that FISA warrant applications are classified, and do not "let the American people" know anything about anything; even if they had put the information in bold-faced type on every page, "the American people" would not have known about any of it. [You'd think he would have remembered that, no?]
But that is hardly the worst of it. The worst of it, I think, is the contempt that Nunes and his supporters have shown for the very fundamental principle that there are—always—two sides to every story. Even if, after reading Nunes' summary of Gowdy's summary, you believe that it makes a compelling case that there was serious FBI misbehavior—a view I happen not to share, but that's neither here nor there at the moment—we don't know what actually happened, let alone whether or not it constituted misbehavior, until we hear the other side's explanation of things.
It's why we don't allow juries to convict people of criminal misbehavior at the close of the prosecutor's evidence. It's not only because it would be unfair to do so (which of course it would be); it's also because we recognize that we can't know what happened until we hear the other side's version of the events. Our adherence to adversary processes in legal proceedings, and our insistence that people charged with misbehavior have a right to give their version of events, is not just about fairness; it's about truth-finding. Hardly perfect, Lord knows—to paraphrase Churchill, it's the worst system for getting at the truth, except for all the others. We don't believe the story the government tells until we hear from the defense, because we don't know what happened until we hear from the other side.
Astonishingly—and in my view, impeachably—Rep. Nunes refused to allow the FBI to come in and to give him, and the rest of the Committee, its version of things. We know that their version is substantially different than the one in the memo, because the Bureau expressed "grave concerns about material omissions [from the memorandum] that fundamentally impact the memo's accuracy." [And I bet they actually read the memo before concluding that it had material omissions that fundamentally impact its accuracy]
But Nunes, and Gowdy, and the rest of the Republicans weren't interested in hearing their version of events.
It's shameful. Absolutely shameful. If you actually wanted to know whether there was FBI misbehavior, you'd want to hear from the people ostensibly involved; indeed, you'd call them in and demand that they give you an explanation for what they did. Not giving them that opportunity is terribly unfair; after all, there are individuals here who's reputations and careers are at stake, and to proceed without hearing their characterization of events is disgraceful.
But more than that, their unwillingness to hear the FBI's characterization of the events shows that they could care less about whether or not the memorandum was, indeed, accurate.
And if they could care less, how can anyone possibly believe a single word of it?
Some otherwise sensible people seem to have lost sight of this elementary principle. The Editorial Board of the Wall Street Journal, for example. In its editorial—a summary of Nunes' summary of Gowdy's summary, in effect—it writes:
The memo says an "essential" part of the FISA application was the "dossier" assembled by former British spy Christopher Steele and the research firm Fusion GPS that was hired by a law firm attached to the Clinton campaign. The memo adds that former FBI Deputy Director Andrew McCabe told the committee in December 2017 that "no surveillance warrant would have been sought" without the dossier.
This is troubling enough, but the memo also discloses that the FBI failed to inform the FISA court that the Clinton campaign had funded the dossier. The FBI never informed the court that Mr. Steele was in effect working for the Clinton campaign. The FBI retained Mr. Steele as a source, and in October 2016 he talked to Mother Jones magazine without authorization about the FBI investigation and his dossier alleging collusion between Russia and the Trump campaign. The FBI then fired Mr. Steele, but it never told the FISA judges about that either. Nor did it tell the court any of this as it sought three subsequent renewals of the order on Mr. Page.
Note the verbs: the memo "says" this and "discloses" that and "adds" something else. Fair enough.
And then: "The FBI never informed the court that Mr. Steele was in effect working for the Clinton campaign."
No, that should read "The memo says that the FBI never informed the court that Steele was in effect working for the Clinton campaign." Omitting those introductory four words makes it look as though the WSJ Board actually believes the memo's assertion(s). But the memo was prepared by people who don't care about the truth, so its assertions, while they might be true, might be not-true. And I cannot help but wonder how the Wall Street Journal is so sure that they are true, not having heard any alternative explanation of the events.
SEE OOPS! above. Now the WSJ Editorial Board looks, collectively, like a moron.
It is disgraceful. I have been reading a great deal lately about Britain during the years leading up to WW II, and it occurs to me that it must have been a special kind of misery for Neville Chamberlain, say, or Lord Halifax, or the collaborationist William Joyce ("Lord Haw-Haw"), to know that their grand-children and great-granchildren would, when reading about them in the history books, find that their names were associated with treachery and stupidity and pusillanimity. Rep. Nunes should, perhaps, have thought a bit more about that.