Battle over secret Nunes memo could come to a head next week

That the exact contents of the almost-infamous Nunes memo — a four-page classified document apparently claiming the FBI engaged in “shocking” surveillance abuses —have remained secret even as the document has captured headlines for weeks and is available to all House members to view is remarkable in today’s Washington.

Its author, Rep. Devin Nunes, R-Calif., and some of his GOP colleagues on the House Intelligence Committee want to declassify it, and may vote to do so as soon as Monday. The White House says it supports “full transparency.” The Justice Department, on the other hand, says that to make it public without their review and possible redactions would be “extraordinarily reckless.” And Democrats accuse Nunes of trying to derail Special Counsel Robert S. Mueller III's probe into Russia's influence in the 2016 election and whether it worked with the Trump campaign.

In its opening language, the memo says that its purpose is to brief lawmakers on the findings of the Intelligence Committee’s investigation into actions by the Department of Justice and the FBI, according to a Democrat familiar with the document; the actions had to do with an application for a warrant under the Foreign Intelligence Surveillance Act in connection with Mueller’s investigation.

But, the source said, “There is no investigation” in the usual sense of the word -- no factfinding mission by the full committee, with witnesses and the usual trappings. That alone is a tipoff that the memo’s purpose is suspect, said the source.

The Intelligence Committee voted last week to allow the full House to review the memo in a secure area of the Capitol, but the contents still remain a secret to the Senate, the Justice Department, the White House and the public.

Megan Stifel, a former attorney at DOJ’s National Security Division who helped draft the FISA Amendments Act, cautioned that the report may contain speculation that readers might mistake for fact.

“I think discussions around this memo have made it clear that even at the highest levels of government, we have people who don’t understand how FISA works,” Stifel said. “(This report) might speculate, and the speculations could be really wrong, and it could do huge damage to national security.”

The Justice Department and the FBI have repeatedly requested to review the contents of the memo — requests that have all been denied, according to FBI spokesman Andrew Ames. A letter sent to Nunes this week from Assistant Attorney General Stephen E. Boyd urged that the document not be released before DOJ had a chance to review it for possible national security damage.

Five House Intelligence Committee Republicans who responded to a Lawfare survey said they’d vote to release the memo to the public (Nunes was not included). Only three of the five, though, said they had “confidence in the factual accuracy” of the document’s claims. Reps. Frank LoBiondo of New Jersey and Mike Conaway of Texas did not answer that question.

Many Republicans, not just those in Congress, have taken up the call to make the document public, and #ReleaseTheMemo has taken off on Twitter. Among those promoting the meme are accounts that have been linked to Russia, according to at least one report. But on Friday the GOP found itself battling to retake the momentum from the latest President Trump-related revelation in a news cycle that seems only to accelerate: that Trump tried to have Mueller fired last June.

Rep. Adam Schiff, D-Calif., ranking Democrat on the committee, said the fact that the panel's Republicans wouldn't share the memo with the chairman of the Intelligence Committee on the other side of the Capitol, GOP Sen. Richard Burr of North Carolina, "shows how little confidence they have" in their memo.

Schiff and Mark Warner, D-Va., ranking Democrat on the Senate Intelligence Committee, both accused Nunes of preparing the memo without even reading the underlying classified documents that it characterizes, and Schiff is preparing a counter-memo that critiques Nunes’s.

“Unlike almost all of the 200 GOP congressmen who’ve seen the memo, I have actually read the underlying documents, and I am confident that there was nothing improper like what this memo seems to allege,” Warner said.

Boyd’s letter said only Schiff, Rep. Trey Gowdy, R-S.C., and members of their staffs have reviewed those documents on behalf of the House Intelligence Committee.

The document apparently deals with a dossier on then-candidate Donald Trump prepared by former British intelligence officer Christopher Steele in 2016 for research firm Fusion GPS. An FBI application for a warrant under the Foreign Intelligence Surveillance Act in connection Mueller’s investigation allegedly relied at least partially on the dossier. It’s not clear whether the FBI disclosed at the time that Fusion GPS was being paid by Hillary Clinton’s campaign for the research on Trump.

If the panel does vote to make the memo public, the ball goes to Trump’s court for five days. If he objects, the full House would meet behind closed doors for a vote to decide the matter. Trump could also approve its immediate release or do nothing, in which case the memo would become public after the five days.

Republican attacks on the FBI and DOJ, which have ramped up in recent weeks, sap morale and potentially harm the agencies’ ability to operate effectively, said Jamil Jaffer, who served as counsel to the Assistant Attorney General for National Security under the Bush administration.

“But at the same time, parts of the FBI have been their own worst enemy,” Jaffer said. “The messages between (FBI personnel) Peter Strzok and Lisa Page, losing the data, it doesn’t paint a great picture.” Jaffer was referring to text messages between the two that disparaged Trump — but also commented negatively on some Democrats.

Attorney General Jeff Sessions said in a speech in Norfolk, Virginia on Friday that DOJ officials “don’t see criticism from Congress as a bad thing,” but that “while we are open to fair criticism, we will of course defend our investigators and prosecutors from criticism that is unfair.”

Nunes’ office did not respond to a request for comment.

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