Next Steps with the Nunes Memo

The House Intelligence Committee (oxymoron) voted to release the Nunes Memo that attacks the FBI and DOJ. Others have suggested that it seems to be a hatchet job directed at Rosenstein and his re-application for a FISA warrant to continue surveillance of Carter Page. Nevermind that such facts mostly backfire (the memo would thus confirm that Trump appointees found that there was probable cause that Trump campaign aide Carter Page was indeed a Russian agent committing crimes). My question is what comes next?

My understanding is that the next step is for FBI Director Christopher Wray to review the memo, but the DOJ will not have the same chance. The DOJ should have been given this opportunity, but it also important to acknowledge that the DOJ leadership is in a very awkward position. Attorney General Jeff Sessions is recused from the Russia investigation. Deputy AG Rosenstein is the acting AG on this investigation, but his conflicts (as the subject of the memo) should lead him to recuse on any decision to release it. The next in line is Associate AG Rachel Brand. From what I’ve read, she is a solid professional and trustworthy. But the problem is that if she were to significantly redact the memo or block its release, the partisans in the Trump world would demonize her, too. It’s a no-win situation for the DOJ. This is a bizarro world, because both Rosenstein and Brand were nominated by Trump and confirmed by a Republican Senate.

It seems as if the only check on the memo’s content and release is FBI Director Christopher Wray. I have some concerns about Wray, but the reports that he intervened to protect Andrew McCabe are reassuring, and I want to believe that Wray will do the right thing in the middle of another awkward situation. My guess is that Wray will make a good faith effort to redact the memo to protect confidential sources and surveillance methods, and he will approve the release of such a redacted memo. And I think that’s the right outcome, because now that the Trumpers have weaponized this memo, blocking its release would have its own downsides. Trump World would say, “Look! We’re right that the Deep State is biased against Trump!” Meanwhile, they will simply tell the media their own version of what the memo says, without any chance for the media or officials to read and critique the actual memo.

From what I’ve read, it seems implausible that the Rosenstein-Dossier-FISA story will hold up. It’s a tin-foil hat conspiracy. At this stage of the Trumpers’ tragic attacks on law enforcement, it seems like a responsibly redacted memo will be released, and that’s probably the least-bad result in a bad situation. Eventually, the counter-memo written by Congressman Adam Schiff will be released, but even if its release is delayed, my guess is that analysts will still be able to pick apart Nunes’s memo.

For more, Asha Rangappa has a must-read on the Nunes Memo and what it mus address.

Update: The Schiff counter-memo is apparently an “extraordinarily detailed, point-by-point rebuttal of unbelievably shoddy allegations,” Rep. Himes, the number two Democrat on the House Intel Committee, tells the Washington Post’s Greg Sargent. So if Schiff can’t release it, why can’t Schiff fight reckless fire with careful fire? Can the Senate Intelligence Committee, which has access to the same documents, draft its own memo? Can they meet with Schiff to get his assistance and guidance? Can the DOJ or FBI issue its own response?

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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