FacebookTwitterGoogle+RedditEmail

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.

November 19, 2018
David Rosen
Amazon Deal: New York Taxpayers Fund World Biggest Sex-Toy Retailer
Sheldon Richman
Art of the Smear: the Israel Lobby Busted
Chad Hanson
Why Trump is Wrong About the California Wildfires
Dean Baker
Will Progressives Ever Think About How We Structure Markets, Instead of Accepting them as Given?
Robert Fisk
We Remember the Great War, While Palestinians Live It
Dave Lindorff
Pelosi’s Deceptive Plan: Blocking any Tax Rise Could Rule Out Medicare-for-All and Bolstering Social Security
Rick Baum
What Can We Expect From the Democrat “Alternative” in California?
Thomas Scott Tucker
Trump, World War I and the Lessons of Poetry
John W. Whitehead
Red Flag Gun Laws
Newton Finn
On Earth, as in Heaven: the Utopianism of Edward Bellamy
Robert Fantina
Shithole Countries: Made in the USA
René Voss
Have Your Say about Ranching in Our Point Reyes National Seashore
Weekend Edition
November 16, 2018
Friday - Sunday
Jonah Raskin
A California Jew in a Time of Anti-Semitism
Andrew Levine
Whither the Melting Pot?
Joshua Frank
Climate Change and Wildfires: The New Western Travesty
Nick Pemberton
The Revolution’s Here, Please Excuse Me While I Laugh
T.J. Coles
Israel Cannot Use Violent Self-Defense While Occupying Gaza
Rob Urie
Nuclear Weapons are a Nightmare Made in America
Paul Street
Barack von Obamenburg, Herr Donald, and Big Capitalist Hypocrisy: On How Fascism Happens
Jeffrey St. Clair
Roaming Charges: Fire is Sweeping Our Very Streets Today
Aidan O'Brien
Ireland’s New President, Other European Fools and the Abyss 
Pete Dolack
“Winners” in Amazon Sweepstakes Sure to be the Losers
Richard Eskow
Amazon, Go Home! Billions for Working People, But Not One Cent For Tribute
Ramzy Baroud
In Breach of Human Rights, Netanyahu Supports the Death Penalty against Palestinians
Brian Terrell
Ending the War in Yemen- Congressional Resolution is Not Enough!
John Laforge
Woolsey Fire Burns Toxic Santa Susana Reactor Site
Ralph Nader
The War Over Words: Republicans Easily Defeat the Democrats
M. G. Piety
Reading Plato in the Time of the Oligarchs
Rafael Correa
Ecuador’s Soft Coup and Political Persecution
Brian Cloughley
Aid Projects Can Work, But Not “Head-Smacking Stupid Ones”
David Swanson
A Tale of Two Marines
Robert Fantina
Democrats and the Mid-Term Elections
Joseph Flatley
The Fascist Creep: How Conspiracy Theories and an Unhinged President Created an Anti-Semitic Terrorist
Joseph Natoli
Twitter: Fast Track to the Id
William Hawes
Baselines for Activism: Brecht’s Stance, the New Science, and Planting Seeds
Bob Wing
Toward Racial Justice and a Third Reconstruction
Ron Jacobs
Hunter S. Thompson: Chronicling the Republic’s Fall
Oscar Gonzalez
Stan Lee and a Barrio Kid
Jack Rasmus
Election 2018 and the Unraveling of America
Sam Pizzigati
The Democrats Won Big, But Will They Go Bold?
Yves Engler
Canada and Saudi Arabia: Friends or Enemies?
Cesar Chelala
Can El Paso be a Model for Healing?
Mike Ferner
The Tragically Misnamed Paris Peace Conference
Barry Lando
Trump’s Enablers: Appalling Parallels
Ariel Dorfman
The Boy Who Taught Me About War and Peace
FacebookTwitterGoogle+RedditEmail