The Increasing Panic Surrounding Devin Nunes’ “Extraordinarily Reckless” Plan to Release Memo

I thought I’d chronicle the increasingly senior panic surrounding Devin Nunes’ plan — reportedly backed by Trump — to release the Nunes memo without first letting FBI and DOJ review it. Clearly, there’s concern this will burn underlying sources for the FISA application(s) described in the report. I don’t rule our the belated revelation of something I’ve been hearing for at least six months — that the Dutch passed on intelligence in real time of APT 29 hacking US targets and had an inside view of the operations — isn’t meant as a warning of what will happen if the US further burns the Dutch.

I’m also interested in AAG Stephen Boyd’s emphasis that Nunes delegated his review of these documents to Trey Gowdy, perhaps suggesting both will have some kind of liability for any damage that will result from this game of telephone.

Sunday, January 21: FBI denied a copy of Nunes’ memo.

“The FBI has requested to receive a copy of the memo in order to evaluate the information and take appropriate steps if necessary. To date, the request has been declined,” said Andrew Ames, a spokesperson for the FBI.

Wednesday, January 24: Richard Burr’s Senate Intelligence Committee staffers denied a copy of the memo.

Senate Intelligence Committee Chairman Richard Burr’s staff has not been given access to a classified memo drafted by House Intelligence Committee Chairman Devin Nunes, a sign of how closely House Republicans are guarding allegations of Justice Department wrongdoing over surveillance activities in the Russia investigation.

According to three sources familiar with the matter, Burr’s staff requested a copy of the memo and has been denied, just as the FBI and Justice Department have also been denied reviewing a copy of the document.

Wednesday, January 24: Trump’s Assistant Attorney General for Legislative Affairs Stephen Boyd writes letter noting that releasing memo will violate agreement.

Recent news reports indicate a classified memorandum prepared by House Permanent Select Committee on Intelligence (HPSCI or Committee) staff alleges abuses at the Department of Justice (Department) and the Federal Bureau of Investigation (FBI) in the FISA process. We understand many members of the House of Representatives have views this memorandum and that it has raised concerns.

As you know, we have provided HPSCI with more than 1,000 pages of classified documents relating to the FBI’s relationship, if any, with a source and its reliance, if any, on information provided by that source. Media reports indicate that the Committee’s memorandum contains highly classified material confidentially provided by the Department to the Committee in a secure facility.1

[snip]

In addition, we have also heard that HPSCI is considering making the classified memorandum available to the public and the media, an unprecedented action. We believe it would be extraordinarily reckless for the Committee to disclose such information publicly without giving the Department and the FBI the opportunity to review the memorandum and to advise the HPSCI of the risk of harm to national security and to ongoing investigations that could come from public release. Indeed, we do not understand why the Committee would possibly seek to disclose classified and law enforcement sensitive information without first consulting with the relevant members of the Intelligence Community.

Seeking Committee approval of public release would require HPSCI committee members to vote on a staff-drafted memorandum that purports to be based on classified source materials that neither you nor most of them have seen. Given HPSCI’s important role in overseeing the nation’s intelligence community, you well understand the damaging impact that the release of classified material could have on our national security and our ability to share and receive sensitive information from friendly foreign governments.

[snip]

Additionally, we believe that wider distribution of the classified information presumably contained within your memorandum would represent a significant deviation from the terms of access granted in good faith by the Department, HPSCI, and the Office of Speaker Paul Ryan.

The Department renews its request — as previously made in a personal appeal by the Director of the FBI — for an opportunity to review the memorandum in question so that it may respond to the Committee before any vote on public release.

1 To date, the Department has provided detailed briefings and made available to HPSCI documents requested as part of its investigation into Russian influence in the 2016 election. The terms of access stipulated that review of the documents would be limited to the Chairman or his designee, the Ranking Member or his designee, and two staff members each. (Mr. Gowdy reviewed the documents for the majority. Mr. Schiff reviewed the documents for the minority.) Other committees of jurisdiction — the Senate Select Committee on Intelligence, the Senate Committee on the Judiciary, and the House Committee on the Judiciary — have accepted similar procedural safeguards to protect against improper dissemination of information.

Thursday, January 25: DOJ spox (and close Jeff Sessions ally) Sarah Isgur Flores goes on Fox to argue DOJ should get to look at the memo first,

Let us see it first. At this point, nobody in the Senate or the White House or the Department of Justice or FBI has seen this document, and a number of Congressmen have expressed a lot of concern about it. So we would like to see it. Well, I think we’d certainly want to see any evidence of wrong-doing and take action upon that if there is wrong-doing going on. And then, I think we’d want to discuss, I mean, this is classified material for a reason. It has national security implications. It may have implications for our allies or others in the intelligence community.

Thursday, January 25: Majority Whip and SSCI member John Cornyn says Nunes should let DOJ review the memo.

Cornyn, who has been briefed on Nunes memo, suggests Nunes should listen to DOJ concerns. “We all should pay attention to what the Justice Department’s concerns are, and I’m sure the chairman will. It’s always good when we communicate and consult with one another,” he told me

Thursday, January 25: James Lankford says Nunes should follow “proper declassification procedures.”

Update: First, I fixed the dates.

Second, I wasn’t aware of this statement from Paul Ryan’s spox, sometime in the last day. (h/t Maestro)

A spokesman for Ryan pushed back at the DOJ’s characterization of the negotiations.

“As previously reported, the speaker’s only message to the Department was that it needed to comply with oversight requests and there were no terms set for its compliance,” Doug Andres, the spokesman, said in a statement.

This is fairly breathtaking, as it suggests Ryan (and by association Nunes) are not agreeing to abide by any of the security precautions imposed on the access to highly sensitive case files Nunes obtained.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

38 replies
  1. bell says:

    just curious.. if the head of the intelligence commitee thinks the doj, fbi and cia are responsible for illegal actions, is it against the law for nunes to not share it with them? thanks and spare me the troll bs..

    • harpie says:

      This is what the letter has to say about that:

      Additionally, we believe that wider distribution of classified information presumably contained within your memorandum would represent a significant deviation from terms of access negotiated in good faith by the Department, HPSCI, and the Office of Speaker Paul Ryan.

      …so, maybe not “against the law”, per se, but a problem non the less.

      Boyd suggests that if the memo can’t be shared with the AG and the Director, he should run it by the Inspector General:

      His office would appropriately investigate any alleged wrongdoing by the FBI or other Department personnel and independently assess whether prior public release of the memorandum would impair its ability to do so.

       

    • Heron says:

      I’m a complete novice on these issues, but why wouldn’t this, if it does endanger classified sources, violate 18 USCode Ch37 Section 793, subsections (d) and (g)?

      Do members of Congress just not count as “Whoever”, or have some form of immunity?

      Or does this section not cover things like intelligence sources?

  2. Rapier says:

    What a stoolstorm, and still Ryan nor anyone will do a thing. The memo is so disastrous for them but it’s Trump’s baby so they sit back and watch. Cripes, a congress full of eunuchs that, ,,,,well pick your own analogy. Mine are too nasty and this isn’t Wonkette.

  3. earlofhuntingdon says:

    Nunes would have to have a reasonable belief in the existence of crimes.  In this case, he would also have to assume those crimes extended from the top down – at both the DoJ and FBI.  Otherwise his failure to tell appropriate federal law enforcement agencies of them, after having properly declassified his material (a snap), would be both wrong and risible.  Both characteristics seem to follow Nunes from playground to playground.

    The more likely case surrounding this so-called staff memo is that Nunes is again playing with a hot iron of made-up shit by trying to toss it to somebody else in the boys’ locker room.

    • SpaceLifeForm says:

      Cherry-picking.

      Over 1000 pages of classified ‘stuff’ condensed into a 4 page memo?

      Sure. I’ve got a bridge and tower for sale too.

      And that has nothing to do with the inadvertent reveals.

      Boyd better write to Grassley too.

    • Peterr says:

      Seems to me that the obvious place for Nunes to take his memo, if he is so concerned about DOJ/FBI overreach on FISA would be to take it to the judge that signed the FISA application. “Your honor, I submit to the court — under seal — a report which states that the DOJ went beyond their authority in using a warrant authorized by you, and evidence to back up that allegation. We ask that you call the DOJ to account for their actions, in as public a manner as is possible, given the need for secrecy about sources and methods.”

      IANAL, but it seem obvious to me that if you want to challenge the abuse of a warrant, you go to the judge who signed the warrant. Of course, I Am Also Not A Wingnut Politician, so what do I know?

      • SpaceLifeForm says:

        Maybe because the entire effort is to snow the public and put pressure on FBI?

        Besides your angle, as Boyd noted, Nunes could go to IG.

        Either route would result in much less public noise, defeating the purpose.

        Red Herrings are attractive to Faux [Noise].

    • earlofhuntingdon says:

      Nunes is trying to rip the Speech and Debate clause a new asshole, so he can jump through it.  Catch him doing something without immunity and he’s a scared rabbit, like many of his colleagues.

  4. Domye West says:

    Nunes does not seem very bright, so I am actually excited to see where this ends up. He seems like he stumbles every time he tries to interfere in the investigation.

  5. orionATL says:

    there is a bureaucratic process for dealing with the sorts of issues (illegal conduct, fraud, incompetence, etc.) that whistleblowers raise – and then get sent to jail for not following when they take their concerns to the press after feeling like those concerns were ignored in the internal complaint process.

    are congressmen immune from being expected (if not required by law) to follow some similar sort of complaint-lodging process?

    are congressmen not liable under the espionage act, just as any other citizen?

    though focused on the fbi, there really can be little doubt that nunes is manufacturing a diversion to take attention from and damage the credibility of mueller’s investigation.

    i wonder where mike pompeo is in all this – getting in his licks against the fbi wouldn’t surprise me (while washing trump’s feet)?

    and where is the little spy who was on the natl security council and who was nunes partner in crime when nunes was viewing documents he had no right to see (provided by the whitehouse) several months back?

    could this (these) be the same documents being recycled into a fake scandal?

  6. Bob W says:

    If anything in Nunes’s memo (or the whole enterprise) constitutes obstruction of justice b/c of red herring factor(s), could be be prosecuted following release? And if so, by whom? Who has standing /authority, if anyone?

  7. pseudonymous in nc says:

    Poor Pete Hoekstra. Thought he had a nice crony appointment in his native land, spent his first weeks on the job having to answer pointed questions then apologising for being an klootzak, and now likely to be called in for a quiet chat about Devin fucking Nunes.

  8. Trip says:

    Nunes, the administrator of The Secret Society of Silly. *Cue Monty Python Sketch* “But it took me months to write it!”

    Is Nunes trying to make Trump look guilty of something? If so, he’s doing a very good job.

  9. person1597 says:

    Looney Nunes struts and frets his hour upon the stage, and then is heard no more…

    What better idiot to tell the tale?

  10. Rugger9 says:

    The memo is a distraction built upon innuendo like the Huma Abedin HRC email scandal shopped by the NYC Feebs (who still are not being investigated for sliming when they knew they did not know what Huma’s computer had), the Planned Parenthood edited videos, ACORN, Shirley Sherrod (forgive the spelling) and many others.  This gambit relies upon the breathless anticipation of the MSM for the latest information about what might be in there that will sink the target of interest and of course sources that remain anonymous because they are not authorized to talk to the press.  Sure.  The fact that Nunes won’t even release it to the Senate Intel committee is telling, as is Rep Pocan’s review (he’s seen it and said it’s vaporware) and Sen Warner’s assessment relative to the source docs (it’s puffery).  The Kaiser can declassify the whole thing today, and since the Trumpie FBI spox wouldn’t answer questions about it it’s clear sunlight is the last thing the palace wants.

    If the GOP really had anything on anyone, innuendo or eight Benghazi investigations would not be necessary, they would just release it.  Nunes’ apparent hostage taking of FBI undercover assets/sources/methods (I’m speculating here, but that is what would be classified, I think) is designed to inflict maximum scare value while providing a “justification” for not releasing the memo to show that it’s a sword made of marshmallows.  It’s not like they haven’t released TS/SCI information in the past like a NOC CIA agent’s name or the Israeli source about operations in Syria to the Russian Ambassador when it was politically worth it to the GOP and the palace.

    The entire Republican party is in hot water here, since they did use the Russian information in at least Florida if not other places, and McTurtle did stop the warning to America all by himself of Russian interference, so rest assured that the GOP will not throw in the towel.  Everyone including Trump, Pence, McTurtle, LyinRyan, and the rest of the leadership are accessories after the fact at least and they know it.  The only option left for them is to try and fight it out in order to deflect attention away from what Mueller has found.

     

    • bmaz says:

      Naw, you spelled Shirley’s name perfectly. And she is a hero in ways far deeper that that sliming episode. Look up the “Pigford litigation”. She is really something.

  11. Wayne Christensen says:

    I believe Muller is going to release several subpoenas at the same time. The rice pudding is really going to hit the fan. Nunes Kushner, Trump Jr, pence, the vote loser. Our government will be in total chaos.

    fill in the blank

  12. Avattoir says:

    Maybe I’ve been looking in all the wrong places, but I still don’t see confirmation that any of all this recent furious wild stirring of stews in pots is coming from the Office of the Special Prosecutor.

  13. Jaag says:

    Well nyt is saying trump tried to fire mueller in June. Apparently White hours counsel nixed it.

    Hence all the privilege talk and the shit storming.

  14. Dc says:

    Nunes has enlisted Trey Gowdy on this obstruction/obfuscation escapade, presumably because it pertains to his non-recusal.

    Ryan is a cold vicious opportunist, no morals, and not a good faith partner for any negotiation.

    This escapade is brushing up against serious things, even the trump hacks are feeling compelled to put the brakes on.

    • Trip says:

      They all deserve the Guggenheim Golden Toilet Award for shitting on democracy through greed and best performance in a comedic tragedy/farce.

  15. orionATL says:

    can somebody explain to me why the fek EVERY democratic congressman isn’t screaming publicly: “a clear republican betrayal of our nation’s security” OVER and OVER again on every network and in every paper.

    the tactic is simple: say it and then repeat it. say it and then repeat it. say it….

    why the passive silence? don’t these dem idiots understand how to counter a republican lie?

    • SpaceLifeForm says:

      Never interrupt the enemy when they are making a mistake.

      Die-hard gop backers will not believe anything the dems have to say anyway.

      Do not assume that the 1000+ pages of intel is related to Fusion GPS or that there is clear and conclusive evidence that FISC was abused.

      Cherry-picking 1000+ pages of ‘stuff’ to end up as a 4 page memo.

      I’m sure I could cherry-pick the docs and come up with an entirely different story.

      • orionATL says:

        “Never interrupt the enemy when they are making a mistake.”

        i’ve heard this a lot over the years; i’ve come to disbelieve in its general efficacy.

        just think if the republicans and fox had sat by since 2008 and occassionally made mild criticism of dem political efforts or legislation. instead they waged a loud holy war against obama personally and against any dem policy or legislation where they sensed propaganda opportunity. it worked just great for repubs (though not for our society).

        the dems don’t need to step on every specific repub error. they need to choose a theme that the public can see fits republican behavior, then hammer it home, over and over, blow by blow by blow.

        it’s regretful, but in this society with the superficial, reader/viewer-baiting quality of its media analysis of politics, repetition can become truth.

  16. Karl Darx says:

    I’m still not seeing all the Trump wrongdoing vaguely mentioned here.

    As far as the memo goes –

    a) Congress oversees the executive branch, not vice versa, so why would a top committee chair agree to the DOJ redacting even more incriminating evidence?

    Although I’m sure the DOJ would like to hide as much of it as possible.

    b) all the actual evidence so far points to serious wrongdoing by the FBI and other Obama intel people. Looks like illegal spying, fixing the Hillary email crimes, and Hillary paying to have them rigging the election.

    We KNOW many 702 queries were illegal. (says Admiral Rogers)

    We KNOW HRC broke many nat’l security laws, and that Obama knew about it.

    We KNOW that the FBI did everything except drive HRC’s getaway car covering up the email scandal.

    We KNOW that Comey and other top Obama FBI people have leaked illegally.

    We KNOW that Hillary paid to have the Russian Fusion garbage created/spread out.

    It looks like Nunes has composed a summary of this, and the DOJ wants it quashed.

    What am I missing here?

  17. Joe Student says:

    I am thinking why Nunes is going to such blatant and comical extent to provide cover for ending this investigation. Putting in potential reasons why.

    1 – Goodness of his heart – Good faith effort (the incompetence defense)

    2 – He is personally tied in to the investigation somehow and could be targeted.

    3 – He has been promised something for his efforts, which then would tie him to option 2 as an accessory after the fact

    4 – Full Trump Cult. Ends justify the means to protect the president

    5 – The Russia conspiracy goes further than Trump but goes into a broader Russia infiltration of political or government agencies (Conspiracy theory)

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