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Marcy Wheeler on Showdown over Nunes Memo, Mueller Probe & Reauthorization of Mass Surveillance

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A showdown is brewing in Washington as the White House prepares to release a controversial Republican memo despite opposition from the FBI, the Justice Department and Democratic lawmakers. The four-page memo, written by House Intelligence Committee chair, Republican Congressmember Devin Nunes of California, purports to show that the FBI abused its power when it began surveilling Trump campaign adviser Carter Page in 2016 due to his dealings with Russia. Supporters of President Trump claim the memo offers proof that the FBI’s investigation was tainted by politics from the start, in part because the FBI won approval of the wiretap by citing a dossier funded by supporters of Hillary Clinton. On Wednesday, the FBI, which is led by Trump appointee Christopher Wray, issued an unusual statement criticizing the imminent release of the memo, saying, “[W]e have grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.” We speak to independent journalist Marcy Wheeler, who runs the website EmptyWheel.net.

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Transcript
This is a rush transcript. Copy may not be in its final form.

NERMEEN SHAIKH: A showdown is brewing in Washington as the White House prepares to release a controversial Republican memo despite opposition from the FBI, the Justice Department and Democratic lawmakers. The four-page memo, written by House Intelligence Committee chair, Republican Congressmember [Devin] Nunes of California, purports to show that the FBI abused its power when it began surveilling Trump campaign adviser Carter Page in 2016 due to his dealings with Russia. Supporters of President Trump claim the memo offers proof that the FBI’s investigation was tainted by politics from the start, in part because the FBI won approval of the wiretap by citing a dossier funded by supporters of Hillary Clinton. The memo is expected to lay blame on the actions of Deputy Attorney General Rod Rosenstein, the same man who is the only official with the authority to fire special prosecutor Robert Mueller.

AMY GOODMAN: Well, on Wednesday, the FBI, which is led by Trump appointee Christopher Wray, issued an unusual statement, fiercely critical of the imminent release of the memo, saying, quote, “[W]e have grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.” Then, on Wednesday, at night, the ranking Democrat on the House Intelligence Committee, Adam Schiff, claimed Nunes had made, quote, “material changes” to the secret memo before sending it to the president.

This comes as the White House appears to be preparing to release the memo. On Tuesday night, President Trump was caught on mic at the State of the Union speaking with South Carolina Republican Congressman Jeff Duncan.

REP. JEFF DUNCAN: Let’s release the memo.

PRESIDENT DONALD TRUMP: Oh, yeah. Oh, don’t worry, 100 percent. Can you imagine that?

REP. JEFF DUNCAN: Oh, yes, sir!

AMY GOODMAN: Duncan asked if he was releasing the memo, and President Trump said, “100 percent.”

NERMEEN SHAIKH: This is not the first time House Intelligence Chair [Devin] Nunes has been at the center of a controversy. In April, he supposedly recused himself from an investigation into Russia’s alleged ties to Trump associates and Russia’s role in the 2016 U.S. election, after he illegally made classified information public. This came after The New York Times revealed White House officials had met secretly with Nunes to show him classified U.S. intelligence reports detailing how Trump associates were incidentally swept up in surveillance carried out by American spy agencies as they conducted foreign surveillance. Nunes later walked back his recusal.

AMY GOODMAN: We’re joined now by Marcy Wheeler. She’s an independent journalist who covers national security and civil liberties, running the website EmptyWheel.net. We’re speaking to her in Lansing, Michigan.

Marcy, explain exactly what this memo is. This is a firestorm in Washington, pitting Trump’s own appointee, the head of the FBI, against Trump himself.

MARCY WHEELER: So, the memo purports to be a review of FISA, they claim, abuses, primarily focused on a FISA warrant targeted at Carter Page, who at one point was a foreign policy adviser of the Trump campaign, although the FISA warrant was not approved until he was off the campaign, which is just one of the ways we already know that this memo is misleading, because it didn’t target the campaign. It targeted somebody the campaign got rid of because of his ties with Russia. So, that’s the first thing.

And it does—it focuses—it is—reportedly emphasizes the fact that the Christopher Steele dossier, which was—that part of the dossier, an opposition research dossier, was paid for by the DNC and Hillary Clinton’s campaign. And it complains that that dossier was one of the things used to get the FISA warrant against Carter Page. We can assume that it therefore downplays other things that we already know about, for example, that Carter Page, in 2013, was being recruited by Russians. And FBI kind of kept tracking him in the interim period because they were worried about his ties with the Russians. We assume that there are a number of other sources for the FISA application. And again, those are all going to be downplayed in the four-page memo.

NERMEEN SHAIKH: Well, Marcy Wheeler, can you explain a little more why the Republicans and Trump want this memo released?

MARCY WHEELER: Well, they want to find an excuse to fire Rod Rosenstein. But even there, there’s a problem. Rod Rosenstein—there are actually conflicting reports about when the last of these applications was submitted. It was either March or April. New York Times has reported that it was April, after Rod Rosenstein became deputy attorney general on April 26th. But if that’s the case, regardless of which it is, it means that two applications using the dossier had already been approved by the FISA court, one of which came after the dossier was made public. So, either Rod Rosenstein, all he did was sign the last application that had already gone through approval processes in March, right when he came in as deputy attorney general, or he wasn’t involved at all. But they are searching for some excuse, such that they’ll be able to remove Rosenstein, and therefore get to Mueller.

AMY GOODMAN: And explain exactly what that last part is, why they want to get rid of Rod Rosenstein and how that will get them to Mueller.

MARCY WHEELER: So, the only way you can remove Mueller is if his supervisor finds him—not the only way, but the only way that isn’t going to cause a huge firestorm is if his supervisor finds Mueller to have conducted unethical acts or engaged in improper activities. Rosenstein is his supervisor, because Jeff Sessions is recused. And so, you need to, A, remove Rosenstein, and then put in somebody who would be willing to fire Mueller. People talk about the EPA director. No one thinks, for example, that the third in command at DOJ, Rachel Brand, would do it. So, you know, you’ve got to, A, remove Rod Rosenstein, and then, B, put in some partisan hack who would be willing to fire somebody who, by all appearances, is just engaging in a typical investigation.

NERMEEN SHAIKH: And why, Marcy, do the Democrats not want this memo released?

MARCY WHEELER: Well, they argue two things. One, that it’s misleading. As I laid out, it’s not going—it’s going to misrepresent Rod Rosenstein’s involvement. It’s going to downplay the fact that this application—that applications against Carter Page were approved on at least two occasions before Rod Rosenstein got involved. It’s going to downplay the degree to which Carter Page was already off the Trump campaign. It’s going to misrepresent how centrally this dossier played in the application. So that’s one reason the Democrats don’t want it released.

Another reason they don’t want it released is that they say that the memo itself exposes sources and methods. And so, normally, everybody on the House Intelligence Committee kind of goes overboard protecting sources and methods, protecting the secrets that they learn in the course of their business. And in this case, Nunes has thrown that all out the window. He’s using, by the way, to release it, a kind of a legal measure that Congress has available to them to release classified information. It was discussed with the release of the torture report. It would have been appropriate to use it with the torture report. In this case, it’s probably not an appropriate use of the law. But it hasn’t been used. It is not used, because normally when the intelligence committees want to release something, they go in a back-and-forth discussion with the underlying—with the agencies, in this case, FBI. But FBI is also trying to protect—it’s quite clear from what DOJ said last week—other intelligence agency assets, so probably NSA and CIA, and also foreign—information from foreign partners. So, there was a report last week where the Dutch intelligence was making it quite clear that they’re less and less comfortable sharing intelligence with the Trump administration. That’s one of the reasons you don’t release underlying sources and methods, because then we can’t partner with foreign partners, as well.

There’s one other, I would say illegitimate, reason not to release this memo. And that is because FISA, the law that allows the government to target people in the United States as suspected spies rather than as suspected criminals, it’s been in place for 40 years. When it was passed, Congress envisioned that sometimes defendants who were collected on, using FISA warrants, would get to review the underlying dossier, would get to review whether the application was fair. But no defendant in history has ever gotten that review. And Devin Nunes didn’t care about that until Carter Page was targeted. But it is something that I think Congress should revisit—should have revisited, by the way, in the 702 reauthorization that was just passed a couple weeks ago. But DOJ also doesn’t want this underlying report to be released, because it’s going to make it easier for defendants to see what the—what DOJ uses when it’s targeting people with FISA warrants, and they don’t want that precedent. But the precedent would be, I think, useful.

AMY GOODMAN: So, yesterday, Sarah Huckabee Sanders, a fierce defender of President Trump, the White House press spokesperson, said Trump hadn’t—she didn’t believe, had read the memo, that he said he’s going to release, when he was caught off mic at the State of the Union talking to a congressman. And I wanted to ask you about the sort of bigger issue here. It seems like the tables are turned. The Democrats, at least progressives, have been fierce questioners of the FBI over the decades and about the national security state going—you know, overreaching, to say the least. Now all the tables are turned, and the Trump administration is going against the FBI and the Justice Department. What do you make of this, in the long run, whether this will limit the intelligence committees’ oversight of things and overreach of things?

MARCY WHEELER: Well, I wouldn’t go overboard in saying the Democrats have always been critical of the FBI. I mean, it’s really important—

AMY GOODMAN: I meant to say progressives.

MARCY WHEELER: Progressives, that’s fair.

But, I mean, as I mentioned, it was just a couple weeks ago when Congress passed the Title VII reauthorization, another part of FISA. And all of the same people pushing to get this memo out, starting with Devin Nunes, Trey Gowdy, the entire Republican side on the House Intelligence Committee, they all pushed to have FISA reauthorized without any reforms. And down the road, I will point out that the memo that they released doesn’t address a FISA problem that probably did affect Carter Page. So, they don’t—they’re not paying attention to FISA closely enough to talk about the thing that probably did affect Carter Page badly. They don’t care that, for example, the government can collect Tor traffic, including entirely domestic communications, and then weed out which Americans aren’t engaged in crime, and get rid of it, but keep the ones that are engaged in eight enumerated crimes. They don’t care that the FBI can access communications collected under 702 warrantlessly, without any kind of suspicion at all. So, you know, these people who are pushing for this memo to come clean—to come out really do not care at all and do not—cannot believe that the FBI is an abusive agency, because if they did, they would not have reauthorized this legislation. This is exclusively about trying to invent a reason to discredit the Mueller—the Mueller investigation.

And, you know, will it affect oversight, going forward? I think one thing that has been made clear with this whole fiasco is that the House Intelligence Committee doesn’t work. And great, I hope that Republicans will be so embarrassed by the time this is done that they cooperate with people—with good government reformers, who have been saying for a long time there are ways to improve the House Intelligence Committee and make it functional, such that Devin Nunes can’t take it hostage and turn it into a mode of obstruction for the president.

AMY GOODMAN: You know, I meant to say progressive activists, not even Democratic congressmembers, when it came to being concerned about FBI and intelligence and NSA overreach. But you mentioned Trey Gowdy. And yesterday, the Republican congressman from South Carolina, a chair of the House Oversight Committee, announced he is not going to seek re-election. He was instrumental in crafting the Nunes memo. Can you talk about the significance of him leaving Congress, leader in the Benghazi investigation, attacking Hillary Clinton, etc.?

MARCY WHEELER: Yeah, Trey Gowdy, when he’s in front of a camera, is one of the most blustery Republican partisans. But you can tell, even, for example, from the Carter Page transcript, his interview with House Intelligence Committee, that behind closed doors he actually is a competent prosecutor, which is—you know, he’s got a background in that. And he can hammer Republican witnesses.

So, what’s interesting about Gowdy is that he—the underlying materials—this is another complaint the Democrats have. The only people who have read the underlying materials are Adam Schiff, four staffers—two of Adam Schiff’s and two of Devin Nunes’s—and Trey Gowdy. It would have been Devin Nunes, but Devin Nunes, probably because of the recusal you talked about earlier, had Gowdy do it instead. So, the only people who have actually looked at the underlying materials include Trey Gowdy. Now, he didn’t write the memo, Nunes’s staffers did. So there’s this game of telephone going on already.

On Sunday, on one of the Sunday shows, Trey—I think it was a Fox show—Trey Gowdy said, “You know, this memo should come out. It’s important. But my side should not use it to undermine the Mueller investigation.” And the reason he gave is that what is not being seen about the Mueller investigation is there’s a whole counterintelligence side to it. There’s a whole side of it investigating how the Russians tampered in our election. And according to Gowdy, who has seen these underlying documents, he thinks that’s an important and legitimate investigation.

Now, we don’t know fully why he decided not to run. He did cite yesterday that he’s sick of politics. But what’s interesting is, yesterday morning, he was still fundraising. So, as of yesterday morning, he was still planning on running. There’s also reports that Don McGahn, who is the White House counsel, who has been in this sort of obstructive role for Trump, as well, was discussing with Gowdy a position on the Fourth Circuit as a circuit court judge, which is something Gowdy has been interested in the past, and Gowdy turned that down. So, Gowdy, even though he is this fire-breathing partisan hack—you know, you go back to the Benghazi case—he seems to have seen something in the underlying investigation that troubles him, that his Republican partisan colleagues are not paying attention to. And so, Gowdy may surprise us, going forward. But I do think that that is an interesting development yesterday, that the one guy on the House Intelligence Committee who’s actually seen the underlying intelligence has decided to get out of the Republican partisan hackery rat race.

AMY GOODMAN: And finally, Marcy Wheeler, we just have 30 seconds, but the whole issue of whether Mueller will be interviewing President Trump, and President Trump saying he’s very willing to testify under oath, and then his lawyer walking that back—but the significance of this?

MARCY WHEELER: Well, people should remember that Trump is not going to be indicted for obstruction. He might be indicted—he might be named as an unindicted co-conspirator. But he’s not, I mean, like—he’s very unlikely to be indicted for anything, because he’s the sitting president. But it is possible that, for example, Hope Hicks—The New York Times had a report on her possibly obstructing justice last night—she could be indicted or forced into a plea deal on obstruction, and Trump could be named in that. And I think that’s what’s really going on. His lawyers don’t want Trump to sit for an interview, because he can’t tell the truth for more than 10 minutes. And I don’t blame them. But that back-and-forth is going to go on for some time and add pressure to the president, I think.

AMY GOODMAN: Marcy Wheeler, we want to thank you for being with us, independent journalist covering national security and civil liberties, running the website EmptyWheel.net. We’ll link to your piece, your latest pieces, and the latest one, “Byron York Confirms That Many Names and Sources Implicated Carter Page as an Agent of a Foreign Power.” Speaking to us from Grand Rapids, Michigan.

This is Democracy Now! When we come back, we go to Kabul, Afghanistan. Stay with us.

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