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Now that the call to “release the memo” has been fulfilled, and the memo has proved to be underwhelming, one wonders what the purpose of it was. One theory is that the purpose of the memo is to provide a basis to fire Deputy Attorney General Rod Rosenstein.
First, a little background on the memo, a thorough discussion of which appears in a new report prepared by the American Constitution Society and Citizens for Responsibility and Ethics in Washington, “The Smear Campaign Against Mueller: Debunking the Nunes Memo and Other Attacks on the Special Counsel.” Those who have seen the underlying classified documents say that the memo is inaccurate and misleading. The FBI said that it contained “material omissions.”
Read the controversial Nunes memo
The memo, which was released on Friday, was written by the staff of House Intelligence Committee Chairman Rep. Devin Nunes, R-Calif. The memo criticized the FBI for its work in applying for a surveillance warrant from the Foreign Intelligence Surveillance Court. The warrant authorized surveillance of a campaign advisor to then candidate Donald J. Trump. According to the memo, the application was based at least in part on a dossier compiled by Christopher Steele, a former British intelligence agent, and funded by Fusion GPS, a research firm. The research was funded by Trump’s political opponents, a fact that the FISA application apparently failed to disclose, though that fact is disputed by some who have seen the underlying documents.
As a former federal prosecutor handling national security matters, I have seen FISA applications. The applications include lengthy affidavits, often 50 or more pages long, detailing the factual basis from which a judge is asked to find probable cause that the target is acting as an agent of a foreign power. It seems highly unlikely that a FISA application would rely solely on one source, such as the Steele dossier. Moreover, a FISA application may be sought only after a full investigation has been authorized based on independent factual predication. We know from reporting that this happened in this case – the FISA order was obtained in October 2016, three months after the investigation began based on information about the activities of George Papadopoulos in July. Even if the FISA application was somehow flawed, it was not the origin of the Russia investigation.
The memo makes much of the alleged failure to disclose to the court the potential bias of Steele and Fusion based on this funding source. But without seeing the entire application, it is impossible to know the extent to which the dossier was relied on to establish. And because the application is classified, the FBI is unable to respond without disclosing classified information, which the law prohibits.
The failure of the FBI to disclose the potential bias of Steele and Fusion GPS does not necessarily mean that the warrant is invalid. No one is alleging that the facts provided by them are false, just that their payment source should have been included. In an ordinary criminal context, to invalidate a warrant, a challenger must show that the affidavit included false statements that were made knowingly or recklessly, and that the affidavit lacks independent evidence to establish probable cause to support the warrant. No one has made that allegation.
Some other points worth noting are that the warrant relates only to the communications of advisor Carter Page, not the entire Russia investigation. The warrant was reauthorized more than once, which occurs only when the surveillance has been fruitful. From the renewals, we can infer that the surveillance did, in fact, capture valuable foreign intelligence information.
So why, then, has there been so much demand to release the memo, which harms our intelligence community by revealing classified information?
One theory is that the memo is an attempt to undermine the FBI, which is investigating links between Russian interference in the election and the Trump campaign. Another theory is that the memo is an effort to discredit Deputy Attorney General Rod Rosenstein, who authorized at least one of the renewals.
Why Rosenstein? He is the acting Attorney General in the Russia investigation following the recusal of Attorney General Jeff Sessions. Rosenstein, a career prosecutor who was appointed by Trump and has served in Republican and Democratic administrations, appointed Special Counsel Robert S. Mueller III, and only Rosenstein can fire him. Rosenstein says he will not do so in the absence of good cause, as is required by regulation.
Rosenstein also must approve charges proposed by Mueller, and must approve any expansion of the scope of the investigation. Rosenstein’s experience and history suggest that he will exercise these duties professionally and in accordance with the law.
Trump has voiced his displeasure with Rosenstein, reportedly asking him if he is on Trump’s team. Trump has also stated that the memo “totally vindicates” him. If Rosenstein were gone, Trump could replace him under the Vacancies Reform Act with any current presidential appointee for a period of 210 days without confirmation by the Senate. Trump could choose someone who might be more loyal to him and less obedient to the rule of law. Trump’s hand-picked choice would then be the one who approves or disapproves any criminal charges presented by Mueller or a request by Mueller to expand the scope of the investigation.
President Trump has publicly yearned for an attorney general who would protect him. Maybe the memo is Trump’s effort to replace Rosenstein with someone who will clip Mueller’s wings.
Barbara McQuade is a professor at the University of Michigan Law School and a former U.S. Attorney for the Eastern District of Michigan.  She is a member of the American Constitution Society.
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