Update: The “Nunes Memo” was declassified on Friday (Feb. 2) afternoon.
The Clinton White House did it with great success when it was being investigated by Ken Starr.
The Nixon White House did it with mixed results when it was being investigated by Archibald Cox.
Now, the Trump administration is following the well-worn path of taking on a special-counsel investigation by discrediting those probing you. Donald Trump’s target isn’t just special counsel Robert Mueller. It’s the intelligence services as a whole—with the overall aim of showing them as biased against him. It’s opened up into an extraordinary public spat between the president and an FBI chief he appointed just six months ago, over a classified memo written by GOP House aides that purports to show wrongdoing by the FBI in an application to surveil a Trump campaign staffer.
Here are the main issues the White House and its Republican supporters are pushing, which have been extensively documented (pdf) by ethics watchdog Citizens for Responsibility and Ethics in Washington (CREW).
1. The “Nunes memo” shows FBI bias
The four-page memo was written by staffers for House Intelligence Committee chair Devin Nunes, a Republican who has been one of Trump’s most bullish defenders. It reportedly claims that the FBI and the US Department of Justice acted in a biased way when applying for a warrant to secretly monitor Trump aide Carter Page, supposedly relying on information in the notorious Steele dossier, which was paid for by Democrats (paywall).
The FBI, the Democrats, and former intelligence officials say the memo cherry picks information to show the FBI in a bad light, and that law enforcement had several strands of intelligence separate from the Steele dossier. FBI director Christopher Wray took the highly unusual step of publicly calling for it to be withheld, saying the FBI has “grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.” Nunes, who reportedly hasn’t actually seen the intelligence the memo is based on, called Wray’s statement “spurious.”
Nunes also insists the reason Republicans want to publish the memo is for transparency about a possible violation of civil liberties—something his voting record makes difficult to stand up (paywall). Trump, who is said to have told aides he sees publishing the memo as a way of undermining Muller’s overall investigation, apparently plans to release the memo by tomorrow (Feb. 2). That’s despite widespread calls to publish it alongside a rebuttal written by the Democrats on the Intelligence Committee. When asked at a press conference why the two documents cannot be released at the same time, House speaker Paul Ryan first told a journalist he had asked too many questions, then dodged the same question from a different reporter.
The Nunes memo’s premise is part of a larger narrative being pushed by the GOP: that the Steele dossier—and therefore Democrat-funded intelligence—instigated the whole investigation. The FBI reportedly heard about Trump’s links to Russia through various sources before Steele’s memo, including the Australian diplomatic corps (paywall) and British spy agencies.
2. Deputy attorney general Rod Rosenstein isn’t overseeing the investigation properly
This argument is largely based on the memo’s contention that the surveillance-warrant application was biased. It also speaks to a broader frustration that Trump has with Rod Rosenstein, the justice department official who has to approve every major move made by Mueller. The president reportedly considered (paywall) firing Rosenstein in the summer, before eventually landing on axing Mueller (and then backing down). Removing Rosenstein could, theoretically, allow Trump to put in place a deputy attorney general who could do more to obstruct Mueller.
3. An FBI investigator sent anti-Trump texts
The fact that during the presidential campaign one of Mueller’s investigators sent texts (paywall) mocking Trump to another FBI employee (whom he was having an affair with) was no doubt deeply embarrassing and irritating to Mueller. Trump gleefully tweeted the story and said the FBI’s reputation was “in tatters.” A Fox News legal analyst reportedly said it was “just like the old KGB.”
However, this doesn’t mean Mueller or the FBI are biased. As soon as Mueller found out about the texts, he removed the agent, Peter Strzok, from his post. What’s more, Strzok doesn’t seem to have been prejudiced in his work—he reportedly co-wrote the first draft of the letter that reopened the investigation into Hillary Clinton’s emails just days before the 2016 presidential vote, which many see as tipping the election to Trump.
4. Mueller has conflicts of interest
This was Trump’s reported rationale when he tried to fire (paywall) Mueller in June. He apparently had three arguments:
- Mueller had resigned his membership in a Trump golf club over a fee dispute.
- Mueller once worked for a law firm that represented his son-in-law Jared Kushner.
- Trump had interviewed Mueller to return as FBI director just before his appointment as special counsel.
Others add that Mueller should be disqualified due to his reported friendship with fired FBI director James Comey and his role in approving a uranium deal with Russia under Barack Obama.
Mueller’s proponents—and the justice department’s ethics review, which approved him—say none of these arguments hold up. They argue:
- A minor dispute over golf-club fees—which Mueller’s team denies ever happening—doesn’t constitute a conflict of interest.
- Mueller’s work for Kushner’s law firm is irrelevant, since he didn’t represent Kushner himself (or Paul Manafort, the now-indicted former Trump campaign manager, who used the same firm).
- Interviewing for a job doesn’t create a conflict of interest and his willingness to consider it perhaps even proves he isn’t biased against Trump.
- Mueller and Comey’s friendship is said to have only amounted to two dinners and a lunch together during the decade they both worked at the FBI.
- Approving a controversial deal related to Russia doesn’t mean he’s conflicted from all work-related to Moscow. Nor does it mean he was protecting Hillary Clinton, since the Department of State that she led was one of nine that approved it and it’s unclear if she even played a role in that.
5. Mueller’s team has conflicts of interest
The main arguments here are:
- Some of Mueller’s team have donated to Democrats, including Hillary Clinton.
- Top Mueller investigator Andrew Weissman attended Clinton’s election-night party, and praised acting attorney general Sally Yates’s opposition to Trump’s travel ban.
These are a touch troubling for Mueller, but those who back him say they don’t show that his team is biased on the matter of Team Trump’s Russia ties. They point out that government lawyers are allowed to make political donations, and that some also donated to Republicans. (Mueller, himself, is a lifelong Republican.)
Ethics experts at CREW say Weissman’s letter only shows that he has an opinion on the travel ban, not an anti-Trump bias, and that it doesn’t impair his professional judgement.