EDITOR’S NOTE: House Republicans released the disputed memo alleging FBI and Justice Department abuses on Friday, February 2.
With the imminent release of the jury-rigged “Nunes memo” and the resignation of FBI Deputy Director Andrew McCabe, who had been under fire from the president, Donald Trump and his Republican allies in Congress have expanded their all-out assault on the American system of justice, including the FBI, the Justice Department, the US intelligence community, and the Office of the Special Counsel. It’s an unprecedented attack on what Team Trump refers to as an imagined “Deep State,” a “secret society” within the FBI, and a conspiracy of judges, courts, and intelligence officials who have allegedly banded together to bring down his presidency.
There is of course a reality-based way to look at these events—namely, that the White House and the Trump campaign are under investigation by seasoned prosecutors and several congressional committees over plausible allegations that the president’s 2016 campaign colluded with or encouraged a Russian effort to influence the election’s outcome, and that since his inauguration Trump has engaged in a systematic effort to obstruct justice.
Over the past month or so, however, Trump’s obstruction efforts—as the president sees it, “you fight back, oh, it’s obstruction”—has kicked into high gear. At its center is a sustained White House–led attack on both special counsel Robert Mueller and the FBI, including several top FBI officials. Supporting Trump’s attack are the Republicans on the House Permanent Select Committee on Intelligence (HPSCI), who put together and then, on Monday, voted to release to the public a memorandum apparently designed to show that the FBI is partisan, pro-Democratic, and engaged in a broad conspiracy to undermine Trump’s presidency.
This is part of a broader pattern. Since taking office, Trump has targeted investigators, and other law-enforcement officials. He fired Acting Attorney General Sally Yates, who had informed him of Gen. Mike Flynn’s vulnerability to potential Russian blackmail. He ousted US Attorney Preet Bharara in New York (along with all the other Obama-appointed US Attorneys), who had overseen New York real-estate fraud and money-laundering investigations. He demanded FBI Director James Comey’s political loyalty, asked Comey to go easy on Flynn, and then fired Comey over, as Trump famously said on national television, “this Russia thing with Trump and Russia.” He made inappropriate requests of CIA Director Mike Pompeo, Director of National Intelligence Dan Coats, and NSA Director Mike Rogers, seeking their help in winding down the FBI investigation. He pressured his own attorney general, Jeff Sessions, not to recuse himself from the Russia inquiry, sharply criticized Sessions when he did, and then repeatedly slammed Sessions via Twitter and in media interviews, at one point indicating that he wanted Sessions gone. He repeatedly attacked Deputy Attorney General Rod Rosenstein, who has overseen the Russia inquiry since Sessions’s recusal. Last week, reports surfaced that Trump wants to get rid of Rosenstein, too. And Trump has explicitly attacked the entire FBI, saying that it’s “in tatters”—which received strong pushback from the man Trump himself appointed to lead the bureau, Director Christopher Wray. Wray himself threatened to resign over Trump’s uncalled-for attacks against the now-departed Deputy Director McCabe.
To most observers, Trump’s actions amount to a massive campaign to obstruct justice, one of the counts that Mueller is charged with looking into. Never before in American political history—not during Watergate, not during the Iran/Contra investigation in the 1980s, and not during the 1990s special prosecutor’s investigation of Whitewater—has a president so openly challenged the legitimacy of the entire justice system. Others have questioned the interpretation and meaning of evidence, but Trump and his GOP allies—backed in the right-wing media by the likes of Sean Hannity and Rush Limbaugh—have disparaged the patriotism, political neutrality, and professionalism of the entire US Justice Department, including the FBI, as well as the US intelligence community.
The goal of the Trump-HPSCI offensive is explicitly political. First, it is intended to undermine public confidence in the Russiagate inquiry—and there’s evidence it’s working: Although polls show that the public still believes that Mueller’s probe is fair-minded, there are signs that many Americans are starting to agree with the notion that Mueller has conflicts of interest that make him biased. Second, it looks like Trump’s offensive is designed to create running room for the president if and when he decides to take action against Mueller, either by firing him—as, The New York Times reported last week, he already tried to do in June—or by issuing pardons for campaign staffers, aides, and administration officials who have been or might be ensnared in Mueller’s net. And third, if Mueller completes his work and is allowed to issue a report whose findings could conceivably trigger calls for Trump’s impeachment, the current assault on Mueller and the FBI could provide cover for the GOP in Congress to vote against opening impeachment proceedings.
Viewed broadly, Trump’s recent actions are a truly scary spectacle: an erratic, impulsive commander in chief who, like Samson, is willing to collapse the very pillars of American democracy and rule of law. The two most recent outbursts from Trump and his friends in Congress are the much-touted #ReleaseTheMemo campaign by GOP members of HPSCI, and the ruthless campaign that may have forced the premature resignation of the FBI’s deputy director.
The Nunes Memo
On Monday, January 29, all of the Republican members of HPSCI voted to do what they’d been threatening for weeks, namely, to make public a four-page memorandum, compiled by GOP staffers working under Representative Devin Nunes. The memo was first circulated among members of the committee, then to all 435 member of the House. From initial reports, it appears to focus on the process by which the Justice Department and the Foreign Intelligence Surveillance Court approved a warrant to surveil Carter Page, a Trump campaign aide. To obtain the warrant, the FBI and DOJ had to convince a FISC judge that that there was good evidence Page was acting as an agent of Russia.
In fact, Page had been under surveillance by the FBI—which suspected him of ties to Russian intelligence after his contacts with an agent of Russia’s foreign spy agency, the SVR—as far back as 2013. The earlier warrant expired around 2015, but a renewed warrant for surveillance was approved in the summer of 2016, when Page made a trip to Moscow during the election campaign; apparently, that new warrant was repeatedly renewed at the end of each 90-day cycle, and in 2017 it was signed off on by Deputy Attorney General Rod Rosenstein, who has been a recent target of President Trump (even though he’s a Republican who was appointed by Trump).
The Nunes memo reportedly names Rosenstein, Comey, and McCabe, and it supposedly argues that the FBI and DOJ used the Fusion GPS dossier compiled by Christopher Steele, a former MI-6 officer, as a primary piece of evidence to convince the FISC judge to order the surveillance of Page. And because it did so, they apparently argue, the surveillance was illegitimate and politically motivated, because Fusion GPS operated for a time in 2016 under contract to a law firm paid for by the Democratic National Committee and Hillary Clinton’s presidential campaign. In fact, however, the evidence collected to justify the surveillance of Page was not based solely on the Steele dossier. (As John McLaughlin, a former top CIA official, noted this week, a typical FISC warrant request is usually 50-60 pages long. “If the Nunes memo about one is just 4 pages, you can bet it’s a carefully picked bowl of cherries,” he wrote.) Indeed, as The New York Times reported last year, the US intelligence community had phone records and intercepted calls throughout 2016 showing that “Trump associates had repeated contacts with senior Russian intelligence officials in the year before the election.” And in its April 2017 report on the surveillance of Page, the Times added:
As part of the investigation, American intelligence agencies have examined wiretapped communications and phone records. Among those intercepts were conversations among Kremlin officials about contacts with people close to Mr. Trump, including Mr. Page, according to current and former American security officials.
The Democrats attacked the GOP members of HPSCI over its decision to release the memo. In an extraordinary news conference after the HPSCI vote, Representative Adam Schiff, the California Democrat who is the ranking minority member on the committee, accused the Republican majority of politicizing intelligence and said that the GOP had a “transparently political objective.” He noted that HPSCI voted to release the memo over the strong opposition of both the FBI and the Justice Department. The committee, said Schiff, refused point-blank even to meet with FBI Director Wray, who’d offered to come to Capitol Hill to discuss the issue with the committee. Further, the HPSCI Republicans, while voting to make their memo public, denied the Democrats their request to make a rebuttal memo public, though the committee did vote to allow other members of Congress to see the rebuttal. And finally, according to Schiff, HPSCI decided to begin an investigation “into the Department of Justice and the FBI.” That’s right: the committee nominally charged with investigating Russiagate will now start to investigate the investigators. “It does show how, in my view, when you have a deeply flawed person in the Oval Office, that flaw can infect the whole of government,” said Schiff. “And today, tragically, it infected our committee.”
Because the GOP memo is based on highly classified information—since that’s what the DOJ draws on when it prepares a request for a FISC inquiry—both the DOJ and the FBI have strongly opposed its release. On Wednesday—in a sign that Wray, the Trump-appointed FBI director, was willing to risk a direct clash with the White House—the FBI declared in a public statement that it has “grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.”
But Trump of course supports its release, and, according to CNN, when Trump learned that Associate Attorney General Stephen Boyd had officially warned HPSCI against releasing the memo, he “erupted” in anger aboard Air Force One. Boyd, who had written to HPSCI arguing that releasing the memo would be “extraordinarily reckless,” now joins the long list of law-enforcement and justice officials who have attracted the president’s wrath.
The Attack on McCabe
McCabe, the former FBI deputy director, quit abruptly after enduring months of attacks by Trump, who also singled out several other top FBI officials. According to Foreign Policy, last June—around the same time that Trump ordered Mueller’s firing, just weeks after the special counsel had been appointed—Trump went after McCabe; Jim Rybicki, who had been Comey’s chief of staff; and James Baker, the FBI general counsel. All three, Trump’s lawyers reportedly told him, might be called by Mueller as witnesses in an obstruction-of-justice charge stemming from the president’s ouster of Comey last May. Ever since, reported Foreign Policy, “Trump—as well as his aides, surrogates, and some Republican members of Congress—has engaged in an unprecedented campaign to discredit specific senior bureau officials and the FBI as an institution.” And Trump did so “after learning that those specific employees were likely to be witnesses against him as part of special counsel Robert Mueller’s investigation.”
McCabe, a 20-year veteran of the FBI, drew intense fire from Trump, including via the president’s Twitter account. Trump even singled out McCabe during the 2016 campaign. Bringing up the spurious charge that the political connections of McCabe’s wife, who ran for local office in Virginia as a Democrat and got Democratic Party support, meant that McCabe was unreliable, in December Trump tweeted: “How can FBI Deputy Director Andrew McCabe, the man in charge, along with leakin’ James Comey, of the Phony Hillary Clinton investigation (including her 33,000 illegally deleted emails) be given $700,000 for wife’s campaign by Clinton Puppets during investigation?” He also tweeted that McCabe was “racing the clock to retire with full benefits.”
Trump’s sustained assault against McCabe left no doubt that the president was making it very personal. According to The Washington Post, last May Trump summoned McCabe—then serving as acting FBI director, following Comey’s ouster—to an Oval Office meeting and, contrary to all the rules of politics and law enforcement, asked McCabe whom he had voted for in 2016 (McCabe said he didn’t vote). During that meeting, Trump “vented his anger” at McCabe about his wife’s Virginia campaign and donations from people associated with Hillary Clinton.
Making it even more personal, according to NBC’s Carol Lee, Trump called McCabe in a rage after he learned that Comey, who had been in Los Angeles when he learned he’d been fired, took the official FBI plane to come back to Washington. Reports NBC:
The day after he fired James Comey as director of the FBI, a furious President Donald Trump called the bureau’s acting director, Andrew McCabe, demanding to know why Comey had been allowed to fly on an FBI plane from Los Angeles back to Washington after he was dismissed, according to multiple people familiar with the phone call.
McCabe told the president he hadn’t been asked to authorize Comey’s flight, but if anyone had asked, he would have approved it, three people familiar with the call recounted to NBC News.
The president was silent for a moment and then turned on McCabe, suggesting he ask his wife how it feels to be a loser—an apparent reference to a failed campaign for state office in Virginia that McCabe’s wife made in 2015.
McCabe replied, “OK, sir.” Trump then hung up the phone.
On the advice of his lawyers, Trump has said he’ll cooperate with Mueller’s investigation, and that he’ll testify under oath to Mueller’s team—though some legal analysts are skeptical that Trump will actually do so. Still, if Mueller’s relentless work continues for many months, the mercurial Trump will be more and more likely to dispense with his attorneys’ caution. If he once again orders the firing of the special counsel, no one can say they weren’t warned.