The Smear Campaign Against Mueller: Debunking the Nunes Memo and the Other Attacks on the Russia Investigation

When Robert Mueller was appointed Special Counsel in May 2017 to lead the inquiry into Trump campaign ties to Russia, leading Republican voices sang his praises, calling him a man of “uncompromising integrity,”2 with a “stellar” reputation3 and the “right credentials for this job,”4 who will conduct a “thorough and fair”5 investigation with “trust and confidence of the American people.”6 As Senate Majority Whip John Cornyn stated, “Robert Mueller is perhaps the single-most qualified individual to lead such an investigation…and he’s certainly independent.”7 Just a few months later, that attitude has changed.

.. Individually, these allegations are unfounded, as we detail below. Collectively, they amount to one of the most sustained smear campaigns against honest government officials since Senator Joe McCarthy’s attacks of the 1950’s.

.. a pattern has emerged of the President and/or his enablers making wild allegations, dominating a media cycle, then pivoting away as the falsity of the claims emerge. Rather than defending the spurious attacks, after a short interval, a new and baseless charge is launched, and the vicious cycle is repeated.

.. We think the pattern is highly relevant to the credibility of each new charge

.. Myth #5: The Special Counsel’s inquiry is partisan and tainted because it was premised on Clinton campaign-funded and unreliable reports known as the “Steele Dossier.”

The Facts: The hack of Democratic Party emails and a report from Australian intelligence that Trump campaign staff may have knowledge of the hack were reportedly “driving factors” in the FBI’s decision to open an investigation into Russian interference in the 2016 election.

.. Although it is challenging to analyze the memo because neither it nor the underlying documents have been released, there are 7 multiple reasons to doubt its credibility. It appears that Representative Nunes and the other members of the House Intelligence Committee have not actually reviewed the classified source materials that were used to support FISA warrant applications. Any warrant for electronic surveillance would have been required to meet statutory requirements and withstand scrutiny from a judge. The memo is reported to be part of the effort to obstruct the Mueller investigation by discrediting and laying the groundwork to replace its supervisor DAG Rosenstein, and Rep. Nunes has consistently sought to discredit the investigation and bolster the President.

.. Critics argue that Mueller has a conflict of interest because of an alleged friendship with former FBI Director James Comey.12 This notion can be traced to a 2013 article published by the Washingtonian, 13 which describes how the two men were both mentored by Eric Holder in the 1990s and bonded over their roles “in the crucible of the highest levels of the national security apparatus after the 9/11 attacks.”14 As evidence of this friendship, the article cites general similarities including attendance at “Virginia universities with a strong public service tradition,” early success at DOJ, and a view that life at private law firms was unfulfilling that drove each to give up lucrative firm jobs “to return to the trenches of prosecuting criminals.”15 Their friendship was cemented, the article argues, when they both threatened to resign in 2004, because they believed that the Bush Administration’s post-9/11 domestic wiretapping was unconstitutional.16

As a factual matter, this article likely overstates the closeness of the professional relationship between Mueller and Comey, as they never worked in the same office at DOJ simultaneously, 17 and in threatening to resign in 2004 Mueller and Comey were not a unique duo but rather two among a number of DOJ employees who took the same position.18 Further, there is little specific evidence in this Washingtonian article or elsewhere indicating that Mueller and Comey have a close personal relationship, and the facts publicly known indicate that they don’t.

Comey’s attorney has stated outright that the men do not “really have a personal relationship,”19 that the two have never been to each other’s houses, and they have only ever shared one lunch and two dinners.20 As described by Benjamin Wittes, a journalist who does have a friendship with Comey,21 Mueller and Comey “are not, to my knowledge, personal friends,” but rather are “cordial former colleagues and two of the only people alive who have done a particular job.”22

.. A second way of explaining the conflicts of interest argument is that then-Director Mueller was purportedly protecting Hillary Clinton by not bringing Uranium One related charges against her.50 This theory relies on the premise that the Uranium One involved a corrupt quid pro quo between Hillary Clinton and Russian interests under which she advanced the deal in her capacity as Secretary of State in exchange for “a big payment”51 from Uranium One investors to the Clinton Foundation.52

.. These arguments too lack factual and legal merit. As a starting point, proponents of this theory have offered no evidence that Clinton personally participated in the CFIUS decision to approve the Uranium One deal or was even aware of it.54 That no prosecutor filed charges against Clinton during Mueller’s tenure as FBI Director does not suggest that he has a pro-Clinton bias or an anti-Republican or anti-Trump bias; it merely suggests that prosecutors did not believe that a provable crime had occurred. Tellingly, in the time since Special Counsel Mueller left the FBI no charges have been filed against Clinton. Moreover, Clinton’s State Department was only one of nine U.S. government agencies that approved the Uranium One sale.55 There is simply no credible basis to conclude that then-Director Mueller impermissibly singled out Clinton for preferential treatment.

 

House Intelligence Democrats Dispute Republican Report

Among other witnesses, Appendix B includes:

formal and informal campaign foreign policy advisors who have yet to appear before or produce documents to the Committee, including

  • Reince Priebus,
  • Stephen Miller,
  • KT McFarland,
  • Sean Spicer,
  • Keith Kellogg,
  • Joseph E. Schmitz, and
  • Tera Dahl;

individuals with knowledge about the June 9, 2016 Trump Tower meeting with Russian emissaries, the stated purpose of which was to provide damaging information on Hillary Clinton, including Natalia Veselnitskaya, who offered to cooperate, and Roman Beniaminov, a witness with relevant information who resides in the United States;

.. Appendix C identifies more than 20 entities from which the Committee has yet to request documents, including Deutsche Bank, the Estate of Peter Smith (and associated entities), the Russian-American Chamber of Commerce in the USA, and social media companies.

.. Appendix D outlines more than 15 persons and entities for which the Committee believes compulsory process for appearance and/or document production to the Committee is necessary. Included are witnesses who have refused to appear; who have invoked a nonexistent privilege to avoid pertinent testimony or who have simply refused to answer questions because the answers may be adverse to the interests of the President or his campaign; who have not produced any documentation; or whose production was insufficient and for whom we have a reasonable basis to believe that they possess documents responsive to the Committee’s investigation. This list includes, among others:

  • Donald Trump Jr.,
  • Michael Cohen,
  • Jared Kushner,
  • Hope Hicks,
  • Attorney General Sessions,
  • Erik Prince,

and the White House. The Committee must also initiate a contempt process to compel Stephen Bannon to testify to the Committee fully and without constraints.

In consideration of the Special Counsel’s ongoing investigative equities, the Committee also has deferred interviewing

  • Michael Flynn,
  • Paul Manafort,
  • Rick Gates, and
  • George Papadopoulos,

but these interviews will be essential to a complete understanding of the issues of collusion and obstruction of justice. To conduct a legitimate investigation, the Committee would need to interview these individuals, whether or not they have reached plea agreements or are the subject of criminal indictments.

For example, Mr. Flynn specifically informed the Committee via his attorney on June 7, 2017 that he planned to invoke his Fifth Amendment privilege against self incrimination; the Committee did not demand his appearance, as a result. In light of Mr. Flynn’s guilty plea, the Committee should revisit his appearance and seek to negotiate his testimony. The Committee also ought to interview other individuals who may be of investig

The Memo Doesn’t Make Its Case 

The truth requires greater transparency

.. That experience teaches me that the memo simply doesn’t make its case. Indeed, it gets less persuasive — and the material omissions more glaring — with each successive read. It might disclose the existence of troubling FBI misconduct, but the fair-minded reader has no way of knowing whether it does.

.. A good summary always supports assertions with evidence. A good summary provides context. A good summary even includes relevant information that contradicts its thesis so that the reader can evaluate the best counter-arguments. 

.. legal arguments typically depend on lawyers taking thousands (sometimes tens of thousands) of pages of depositions and documents, crafting a concise narrative, and communicating that narrative to a judge — with citations referring to the relevant evidence and quotations of it as well.

.. If there is no citation or quotation, a judge will typically ask the lawyer, “Counselor, what record evidence supports that assertion?”

.. One of the first and most vital assertions in the entire memo is the claim that “the ‘dossier’ compiled by Christopher Steele (Steele dossier) on behalf of the Democratic National Committee (DNC) and the Hillary Clinton campaign formed an essential part of the Carter Page FISA application.” This statement is initially offered without proof. One has to read down to the next page to see any reference to evidence:

Furthermore, Deputy Director [Andrew] McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.

.. When I read this, I had two immediate thoughts. First, what did he actually say? And second, why the subtle change in language from the argument that the “dossier” was an “essential part” of the FISA application to the statement that the warrant wouldn’t have been sought without the dossier “information”? The “dossier” and the “information” are not the same thing.

.. An effective memo would do more to end the debate. How? By quoting the relevant portions of McCabe’s testimony.

Better yet, it could quote the testimony and attach an appropriately redacted copy of the testimony as an appendix.

.. Even the characterization that the dossier was “essential” is a judgment call based on evidence unavailable to the public. Even worse, it was a judgment call based in part on evidence unavailable even to the rest of the committee.

.. memo should have plainly stated the agreement between the DOJ and the committee, along with the reasons for this agreement.

.. good summaries don’t just support conclusions with evidence, they provide vital and necessary context. On this point, the memo fails utterly.

.. it fails to answer the following questions:

  1. How did the FISA application actually describe Steele?

    .. Democrats are arguing that the political nature of his work was appropriately disclosed.  Don’t we need the actual words used to properly evaluate whether the FBI materially misled the court?

  2. In addition to the information from the Steele dossier, what other information did the FISA application include?
  3. To what extent did the multiple renewal applications depend on the information in the dossier? The memo notes that a FISA order must be renewed every 90 days, and each renewal must be supported by an “independent” probable-cause finding. A Trump appointee, Deputy Attorney General Rod Rosenstein, signed at least one of these FISA applications. He apparently believed that the request was supported by probable cause. Why?
  4.  What is the “information” regarding Papadopoulos that triggered the opening of the investigation in July 2016 — a full three months before the Page FISA application? The memo provides information obviously designed to impair the credibility of that investigation — by referring to FBI agent Peter Strzok’s well-known political leanings — but it provides no information about any facts supporting the opening of the probe, leaving the reader with the impression that it was opened solely because Strzok dislikes Trump.

I also wrote above that a good summary “even includes relevant information that contradicts its thesis.” The memo omits any such information, but a Democratic rebuttal exists.

.. But even if the public reviews the Democratic rebuttal, the process is still flawed. The proper way to resolve explosive claims of political bias at the highest levels of government isn’t by dribbling out short memoranda but by issuing comprehensively researched and comprehensively supported majority and minority committee reports.

..it’s not by itself scandalous to review political opposition research — a politically motivated person is no more suspect than the terrorists and criminals who routinely provide information used to support even the most intrusive warrants.

.. When I was in Iraq, we were constantly aware that our sources had their own axes to grind. They didn’t want to defeat their opponents in an election. They wanted them to die in a hail of gunfire.

.. Biased sources are an inherent part of intelligence-gathering.

 

y Justice Dept. told court of source’s political influence in request to wiretap ex-Trump campaign aide, officials say

A now-declassified Republican memo alleged that the Foreign Intelligence Surveillance Court was duped into approving the wiretap request by a politicized FBI and Justice Department.

.. The Justice Department made “ample disclosure of relevant, material facts” to the court that revealed “the research was being paid for by a political entity,” said one official

.. “No thinking person who read any of these applications would come to any other conclusion but that” the work was being undertaken “at the behest of people with a partisan aim and that it was being done in opposition to Trump,” the official said.

.. “We didn’t put in every fact, but we put in enough facts to allow the court to judge bias and motive and credibility of the sourcing,” said Matthew G. Olsen, former deputy assistant attorney general for national security who oversaw the Justice Department’s FISA program from 2006 to 2009.

.. Robert S. Litt, former general counsel to the director of national intelligence and a surveillance law expert, said, “I don’t find any of the allegations hugely problematic, in part because of the lack of context.”

.. Nunes said that the Page wiretap was “outrageous” and that it was based on “salacious information paid for by a political campaign.”

.. At issue was an application for surveillance on Page obtained in October 2016 under the Obama administration and renewed three times

.. To secure the warrant, the government had to persuade a federal judge there was probable cause to believe that Page was acting as an “agent of a foreign power” and engaged in criminal conduct.

.. “Only very select parts of what Christopher Steele reported related to Carter Page were included within the application, and some of those things were already subject to corroboration.”

.. A potentially damaging allegation is that the FISA application, which was based in part on information from Steele about Page’s July 2016 trip to Moscow, also cited a September 2016 Yahoo News article by reporter Michael Isikoff. “This article,” the memo states, “is derived from information leaked by Steele himself to Yahoo News.

In other words, the memo alleges the Yahoo News article amounted to circular reasoning.

.. Schiff said the article was not included in the application to corroborate Steele.

.. Kris said it’s more likely that the Justice Department cited the Yahoo News article “to show that the investigation had become public and that the target [Page] therefore might take steps to destroy evidence or cover his tracks.”