FacebookTwitterRedditEmail

Hack Jobs and Rule of Law: What the Nunes’ Memo Threatens

The Nunes-Republican memo on the Trump campaign Russian investigation is a political hack job. If its purpose was to expose flaws in the investigation it failed.  But if its aim was to provide cover for firing special prosecutor Mueller and sowing more partisan alternative facts, then it might have succeeded.  But the real danger with the memo is actually deeper–it is about the rule of law and the independence of the Justice Department to do its job, including investigating the president of the United States.

The Nunes-Republican Thesis

Much to-do was made in the anticipation and release of the Nunes memo. Written by the House GOP and authorized for release by Trump, the basic argument boils down to saying two things.  First, the original FISA (Foreign Intelligence Surveillance Act) Court warrant to follow Carter Page (a volunteer with the Trump campaign) was flawed because it was based on a dossier by Christopher Steele, a former British spy who confesses to have wanted Hillary Clinton to win, that this information was also used as opposition research by Clinton, and the court was not told of this bias.  Second, the FBI and Justice Department was biased against Trump.

The Memo’s Alternative Facts

There are many problems with both of these claims, both factually and legally.  Factually among the most significant, Carter Page was under inquiry about his Russian connections even before the Steele dossier.  Second, not all the material in the Steele dossier was flawed or biased and instead, some had been independently corroborated.  Third, as the Washington Post reports, the FISA Court did know of the Steele-Clinton connection.  Fourth, there was independent evidence beyond the Steele dossier used to support the warrant.

Legal Flaws in the Memo

Legally, there are also many flaws.  While in general one should be concerned about the integrity and respect for individual rights involving the  closed FISA court proceedings, this is the law of the land that Congress created to address national security concerns.  The basic process  here is the same used in all other proceedings so to criticize it in the Page-Trump case is to indict the entire process.  Second, assuming factually all the Nunes’ memo alleges is true,  none of that legally renders the warrant invalid.  Witness bias in and of itself is no reason to discount evidence or testimony.

For example, I do not like the person who robbed me but the court is not going to reject my statements when I testify against him in court.  Second, while tainted evidence may not be used in court to prove the guilt of a person, the courts do allow tainted evidence for warrant and witness impeachment purposes.  There are also many other warrant exceptions.  The point being is that even if the original testimony to secure the warrant was flawed, the law does not say that everything that flows from the original poisoned fruit is also tainted.  Lastly, even if there was some tainted evidence in the original warrant, FISA rules require warrant reviews every 90 days and such a review would have provided checks in investigation (not to mention the fact that new evidence obtained in the investigation would then have provided new support for the warrant).

In the end, the Nunes-GOP memo comes down to saying that everyone is biased against Trump and therefore that bias outweighs any real evidence that there was Trump campaign collusion with Russians n the 2016 elections.  How ironic.  For how many years have the law and order Republicans  complained that technicalities in warrants let criminals go free?  They have long invoked the old adage first stated by Justice Cardozo in an attack on Fourth Amendment Exclusionary rule: “The constable blunders and the criminal goes free,” but now seem to embrace its logic.

But Does it Matter?

If you head is spinning with names, facts, accusations, and what not, then the memo achieved its purpose in sowing doubt. The Nunes memo was meant to cast doubt on the investigation, making it look like a partisan job.  The Democratic Congressional memo will reinforce that image.  For the vast majority of the public, the GOP memo means nothing (especially releasing it on Super Bowl weekend after a stock market collapse) because no one is paying attention to this insider baseball game.  But  this memo is aimed at two audiences: First, it is a very small general public of swing voters who may decide the outcome of the 2018 elections.

The Real Issue–Rule of Law

Second, it is set up to provide cover with the national Fox news of the world so that they can help Trump discredit the FBI and Justice Department investigations. This is the real issue.

Dating back to Watergate when a special independent prosecutor brought down the Nixon administration, a rallying cry of conservatives have been for what they call a “unitary executive.”  Taking language from Alexander Hamilton’s Federalist Paper number 70 (“The ingredients which constitute energy in the Executive are, first, unity”), they argue that the presidency comprises the entire executive branch over which the president has complete control.   Beyond the obvious conflating the presidency with a corporate CEO, such a view ignores history such as the Pendleton Act and civil service reform as an effort to depoliticize the executive branch.  It ignores the New Deal constitutional revolution, the introduction of the Administrative Procedures Act, and the concepts of checks and balances as means to mitigate abuses of power.

The Nunes memo is an attack against all this. It challenges the independence of FBI and the Justice Department to do its job.  It politicizes these agencies much in the same way Trump did by asking key members in their leadership whether they voted for him.  This memo is really about the integrity of rule of law, of the independence of law enforcement to do its job.  This is the real issue and one hopes that the hack job of the memo is revealed for what it is.

David Schultz is a professor of political science at Hamline University. He is the author of Presidential Swing States:  Why Only Ten Matter.

More articles by:

David Schultz is a professor of political science at Hamline University. He is the author of Presidential Swing States:  Why Only Ten Matter.

bernie-the-sandernistas-cover-344x550
January 21, 2020
Sheldon Richman
Warmonger Cotton Accuses Antiwar Think Tank of Anti-Semitism
John Feffer
Trump Makes Space Great Again
Patrick Cockburn
The US and Iran’s Perpetual Almost-War is Unsustainable – and Will End Badly
James C. Nelson
Another Date That Will Live in Infamy: 10 Years After Citizens United
Robert Fisk
Iran Will be Changed Forever by Admitting Its Great Mistake, Unlike the West Which Ignores Its Own Misdeeds
Dean Baker
Did Shareholders’ Benefit by Paying Boeing’s Fired CEO $62 Million?
Susan Roberts
The Demise of the Labour Party and the Future For UK Socialism
Binoy Kampmark
Janus-Faced on Climate Change: Microsoft’s Carbon Vision
David Levin
The Teamster Revolt Against the Hoffa Era
Victor Grossman
Defender and Spearheads
Russell Mokhiber
BS Public Editor and the Disease of Contempt
Tiffany Muller
Get the Money Out of Politics: 10 Years After Citizens United
Laura Flanders
Iowa is Not the Twitterverse
Graham Peebles
Education: Expanding Purpose
Elliot Sperber
Handball in Brooklyn 
January 20, 2020
Paul Street
Trump Showed Us Who He Was Before He Became President
Eric Mann
Martin Luther King and the Black Revolutionary Tradition
Ipek S. Burnett
MLK and the Ghost of an Untrue Dream
Mark Harris
Better Living Through Glyphosate? Spray Now, Ask Questions Later
Katie Fite
Owyhee Initiative Wilderness and Public Lands Deal Critique: Ten Years After
Thomas Knapp
A Loophole for the Lawless: “Qualified Immunity” Must Go
REZA FIYOUZAT
Best Enemies Forever: The Iran-U.S. Kabuki Show
Jeff Mackler
Worldwide Furor Sparked by U.S. Assassination of Iran’s General Suleimani
William deBuys
The Humanitarian and Environmental Disaster of Trump’s Border Wall
Binoy Kampmark
A Matter of Quality: Air Pollution, Tennis and Sporting Officialdom
James Haught
GOP Albatross
Jill Richardson
Why Do We Have School Lunch Debt at All?
Robert Koehler
Nuclear Hubris
Patrick T. Hiller
Instead of Real-Time Commentary, Eight Common-Sense Reason for Not Going to War with Iran
Charles Andrews
A Note on Carlos Ghosn and Global Capitalism
Jeffrey St. Clair
Some Trees: Los Angeles
Weekend Edition
January 17, 2020
Friday - Sunday
Jeffrey St. Clair
Roaming Charges: No Woman, No Cry
Kathleen Wallace
Hijacking the Struggles of Others, Elizabeth Warren Style
Robert Hunziker
The Rumbling Methane Enigma
Frank Joyce
Will the Constitution Fail Again?
Andrew Levine
Biden Daze
Pete Dolack
Claims that the ‘NAFTA 2’ Agreement is Better are a Macabre Joke
Vijay Prashad
Not an Inch: Indian Students Stand Against the Far Right
Ramzy Baroud
Sealed Off and Forgotten: What You Should Know about Israel’s ‘Firing Zones’ in the West Bank
Norman Solomon
Not Bernie, Us. Not Warren, Us. Their Clash Underscores the Need for Grassroots Wisdom
Ted Rall
America’s Long History of Meddling in Russia
David Rosen
The Irregulators vs. FCC: the Trial Begins
Jennifer Matsui
The Krown
Joseph Natoli
Resolutions and Obstacles/2020
Sarah Anderson
War Profiteering is Real
FacebookTwitterRedditEmail