Devin Nunes
Credit: CSIS/Flickr

The most appropriate reaction to the release of the much-hyped Nunes memo is simple mockery. The entire thing is a joke, a mishmash of half truths and misleading or false claims that ultimately amount to nothing. The memo purports to highlight a conspiracy of sorts in which supposedly Clinton-friendly FBI agents took false information about Trump associate Carter Page gleaned from partisan opposition research, didn’t tell the FISA court about where it came from, and illegally obtained a surveillance warrant on him.

That narrative is a farce, of course: Carter Page had been a target of FBI investigations long before coming on the Trump campaign; the FBI agents in question actively sought investigations against Clinton; the FBI brass are all Republicans appointed by Republicans; the impulse for obtaining the warrant on Page was not from the Steele Dossier but from Papadopoulos and a variety of other sources; the Steele Dossier itself has no apparent inaccuracies and was commissioned by both Republicans and Democrats; agents did inform the FISA court about the potential partisan provenance of the dossier in any case, and so on. It’s just a pile of garbage.

But the one thing that keeps jumping out at me in all this is that it wouldn’t even matter if all Nunes’ claims were true and honestly argued. The underlying investigation is still completely valid, and no one’s civil rights were violated. It’s a point made very well at the Lawfare Blog:

To all of which, a reasonable person must ask: Huh? Indeed, if the above makes for difficult reading from which no particularly strong, let alone scandalous, narrative thread emerges, that’s because the points recounted (assuming they are true) don’t make out a coherent complaint.

To the extent that the complaint is that Page’s civil liberties have been violated, the outraged are crying crocodile tears. For one thing, it is not at all clear that Page’s civil liberties were, in fact, violated by the surveillance; the memo does not even purport to argue that the Justice Department lacked probable cause to support its warrant application. It does not suggest that Page was not, after all, an agent of a foreign power. What’s more, the only clear violation of Page’s civil liberties apparent here lies in the disclosure of the memo itself, which named him formally as a surveillance target and announced to the world at large that probable cause had been found to support his surveillance no fewer than four times by the court. Violating Page’s civil liberties is a particularly strange way to complain about conduct that probably did not violate his civil liberties.

To the extent the complaint is that the FBI relied on a biased source in Steele, the FBI relies every day on information from far more dubious characters than former intelligence officers working for political parties. The FBI gets information from narco-traffickers, mobsters and terrorists. Surely it’s not scandalous for it to get information from a Democrat—much less from a former British intelligence officer working for Democrats, even if he expresses dislike of a presidential candidate.

It’s remarkable. Few want to go down the road of making this argument because it’s much easier to point to the myriad inaccuracies in the memo. That makes sense, but ignoring the thrust of the memo’s implication is a problem. Either the Republican argument is riotously funny, or it’s deeply chilling–and it’s hard to know which.

Nunes and crew are trying to maintain that if, say, a politically liberal FBI agent got information from a credible source who also happened to be politically liberal about potential criminal activity by a conservative target and obtained a surveillance warrant based on that information, then everything that came by way of that surveillance would be fruit of a rotten tree.

Ummm….what? Are they contending that conservative FBI agents have never used conservative sources to obtain warrants against targets that conservatives didn’t like? Really? Again, it’s important to note that this narrative is bunk because that’s not how this investigation unfolded. But even if it did, there’s nothing illegal or wrong with that. Even if the Clinton campaign alone had paid for the Steele dossier, and even if Christopher Steele disliked Trump, and even if Mueller and Rosenstein were Democrats appointed by Democrats, and even if Peter Strzok were a friend of Hillary Clinton’s, and even if the surveillance request was based solely on that dossier….it still wouldn’t matter. Republicans could claim the appearance of politicization, but as long as the underlying information about the surveillance target were true, it wouldn’t matter at all. We all know that Carter Page was serving as a Russian agent, and that several investigation targets have made a deal with Special Counsel Mueller.

Besides, since when did Republicans ever care about the 4th Amendment rights of criminal defendants? Since when did a Republican Congressman ever get up in arms over a drug dealer being caught by a cop who improperly searched his car? Since when did Republicans complain about the apparent ease with which the FBI obtains secret FISA warrants on terrorist targets of dubious necessity? Republicans are all about law-and-order at the expense of civil liberties, until and unless it’s obvious Russian agents working on behalf of a President of the United States currently under investigation for colluding with Russian kleptocrats to steal an election. Then suddenly it’s a big deal not even that someone’s civil liberties may have been violated–which they weren’t even under the Nunes memo’s own claims–but even the appearance of a political perspective within the FBI.

What the Nunes memo is essentially claiming is that it’s illegal to investigate a Republican if any agent dislikes that Republican, or if any of the information used to obtain a warrant against that Republican comes from a source who doesn’t like that Republican.

That’s both really funny and really scary. It also shows what a farce this whole memo episode has been from the beginning.

David Atkins

Follow David on Twitter @DavidOAtkins. David Atkins is a writer, activist and research professional living in Santa Barbara. He is a contributor to the Washington Monthly's Political Animal and president of The Pollux Group, a qualitative research firm.