February 1, 2018

To Release (Or Not Release) the Memo

Sam Lane

This week, the House Intelligence Committee set off a partisan firestorm after voting along party lines to release a classified memo that allegedly accuses the FBI and Department of Justice of wrongdoing during their investigation into members of President Trump’s 2016 presidential campaign. The memo – authored by Chairman Devin Nunes, a former member of Trump’s transition team, and his staff – is reportedly based on a review of a FISA warrant application approved last year by Deputy Attorney General Rod Rosenstein that extended surveillance on Carter Page, a former national security advisor to then-candidate Trump.

The memo alleges that Rosenstein approved the FISA warrant application using information taken from an unverified raw-intelligence document, commonly referred to as the Steele Dossier, without informing the FISA Court about the information’s origin. Rosenstein is currently serving as the acting attorney general for all matters involving the investigation into Donald Trump’s 2016 campaign due to Attorney General Jeff Sessions’ recusal last year.

In order to obtain a surveillance warrant from a FISA Court, investigators must show probable cause that the target of surveillance – in this case, Carter Page – has acted as an agent of a foreign power while in of the United States. The Nunes memo reportedly suggests that if the FISA Court judge was presented unverified evidence taken from the Steele Dossier without his knowledge, then the warrant would be improper and the intelligence gathered would be inadmissible in court.

Democrats on the House Intelligence Committee who have read the memo claim that it is intentionally misleading and cherry-picks various parts of the FISA application to create a favorable narrative without offering proper context. Sen. Richard Burr, the Republican Chair of the Senate Intelligence Committee, has been denied access to the Nunes memo, as have several Department of Justice officials, casting some doubt on the accuracy of the document. Because the original FISA application will not be released along with the Nunes memo, the Democrats have written their own memo which refutes the Nunes memo, but, as of now, Republicans on the committee have blocked its release.

The FBI, which has been granted access to the Nunes memo, released an official statement Tuesday which stated, “As expressed during our initial review, we have grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.”

Both Deputy Attorney General Rosenstein and FBI Director Wray object to the memo’s release, and they met with White House Chief of Staff John Kelly on Monday to voice their objections. Kelly reportedly told Rosenstein and Wray that President Trump is inclined to release the memo, but has not made a final decision yet.

The memo is now in its 5-day White House review procedure, and, if approved by President Trump, will be released. In the meantime, Rep. Adam Schiff, the Ranking Member on the House Intelligence Committee, has accused Devin Nunes of altering the memo approved by the committee before sending it to the White House, thus requiring a new vote on whether to release it.

As of now, it remains unclear what exactly the Nunes memo entails, how serious the accusations in it are, and the legitimacy of those accusations. What remains abundantly clear, however, is that the release of highly classified information – traditionally a non-partisan issue – has now become highly politicized.


Sam Lane

Sam Lane is a Scheduler and Research Assistant with Prime Policy Group and a member of the firm’s research team. He assists several lobbyists working in various practice areas by performing in-depth research and monitoring of legislative issues relevant to client interests.