The Democrat Rebuttal Memo – Or Not?

There’s a new memo in town.  Read our recap of the previous memo, and then read the new one here.  Or just read on below; we’ll cover all you really need to know.

Executive Summary

The new memo is twice as long as the Republican memo.  It doesn’t break any new ground, and therefore people urgently wanting to believe in the investigations will seize onto every word, while skeptics won’t be convinced.  The tie-breaker will probably be whether the George Papadopoulos timeline seems compelling, despite the inclusion of tainting evidence.

The memo states mostly that the Nunes memo left out some other bits of evidence… most of which the Democrats can’t tell you about… that also justified the warrants.  And that the judges were briefed on the biases of the sources.  And that the other bits, such as those FBI agent messages talking about getting Clinton off and destroying Trump, are irrelevant.  And lastly that the warrants did allow gathering of additional information… which, of course, they can’t tell you about, but is important.

Really it boils down to two key quotes, one (convoluted) point and an important timeline:

  • met the rigor, transparency, and evidentiary basis needed to meet FISA’s probably requirement.
  • DOJ provided additional information obtained through multiple independent sources that corroborated Steele’s reporting
  • The DOJ explained Steele's motivations, and the FBI didn’t pay him.
  • The timeline is that the Russia “FBI Counterintelligence” investigation started in July 2016, from Proper Shortcode Usage is:
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    to an Australian in May 2016, well before the FISA warrants.

The first is their claim that the warrants were legally obtained despite the inclusion of tainted “evidence”, the second was justification for continuing the warrants that may have been illegally obtained and the third is simply that they didn’t pay for the tainted data.  (All of these are analyzed below.)

The rest of the document is split between grandstanding playing to the public but not relevant to the issue, data they hope supports their arguments and copious footnotes on the least relevant bits.

Lengthened by Irrelevancies

The Democrat memo has a lot of irrelevant detail in it.  Such as…

  • Which Presidents appointed which judges
    • Going back to Reagan even.  But not really relevant.  Judges are generally independent.
  • Which administrations appointed which officials
    • (Don’t forget that Trump appointed Mueller, who he’s at odds with.  But Comey, who started the whole thing, was appointed by Obama.)
  • What wasn’t accused of happening.
    • For example, the memo claims FISA wasn’t used to spy on the Trump campaign.  They don’t prove it, but that hasn’t been a significant claim regardless.
  • That the warrants helped get additional information.
    • Not relevant; if you gather data illegally, it’s inadmissable.  And there is the issue that they haven’t shown any such important and incriminating data yet.  Mueller indicted Russians, not Trump.
  • The FBI, in the end, did not pay for the Steele Dossier.
    • And yet they also acknowledge that the FBI “considered” it… and that he’d been paid for other “shared information of value” (their words)… Steele would be paid after the valuation of the data, so this seems to support the Nunes memo more than the Democrat memo in that the FBI expected to pay for it.  That they didn’t, after the firestorm hit, is even more damning, not less.
  • They claim that the FBI bias, vis a vis Strzok and Page, is irrelevant.
    • They focus on them as “text messages” rather than on the evidence they display of bias and corruption.  And once that bias and corruption has been established, it tarnishes the entire organization unless you can convincingly prove otherwise.  The Democrat memo has this reversed.
  • They heavily footnote this irrelevant and off-topic data.

What Does It Say?

Skipping the above irrelevant bits, the Democrat memo mostly says, “Well, yes, but…”

The original (GOP/Nunes) memo pointed out several instances of warrants and investigations being based on unreliable (and foreign) sources… sources that were paid for by the opposition (that would be the Clinton campaign).  So the Nunes memo’s point was that the whole investigation, plus warrants, were based on inadmissable fabrications.

This rebuttal memo states:

1. The DOJ met the rigor, transparency, and evidentiary basis needed to meet FISA’s probably requirement

This was one of the top three points in our Executive Summary.  But did it?

The rebuttal memo provided four supporting bullets:

  • contemporaneous evidence of Russia’s election interference;
  • concerning Russian links and outreach to Trump campaign officials;
  • Page’s history with Russian intelligence; and
  • REDACTED Page’s suspicious activities in 2016, including in Moscow.

But the first three are not relevant to the warrants and would have been insufficient for the FISA warrant.  Only the fourth provided that “basis”… and it was based on the Dossier!

So while their claim sounds good, it doesn’t withstand scrutiny.

2. DOJ provided additional information obtained through multiple independent sources that corroborated Steele’s reporting

In other words, the corrupt news sources weren’t the only news sources used.  Because news sources never copy from or syndicate from one-another!  

Steele, at Fusion GPS’s request, met and leaked to The New York Times, The Washington Post, Yahoo! News, The New Yorker, CNN, and Mother Jones meeting with the NY Times, Washington Post, and Yahoo! News additional times also.  That’s pretty wide coverage that would certainly be picked up by other outlets.

The DOJ’s Steele Disclosure

The final main point was: The DOJ explained Steele’s motivations… 

The rebuttal memo states, and the left-leaning media is trumpeting, that “The Democratic memo does dispel the Nunes memo’s most compelling original claim, that the court never knew who paid for the Steele dossier.”

There are two problems with this:

1. The memo acknowledges the FBI “considered” (agreed to) pay for it, but then later did not… which the media is taking as “the FBI didn’t pay for it”, rather than the precise and important “The FBI was going to pay for it, and Fusion/Steele expected to be paid for it, until the political crap hit the fan.”

The Washington Post, generally a defender of the Left, broke this story nearly a year ago.  The FBI intended to pay Steele.  So claiming that the FBI didn’t pay for it is meaningless; they intended to.

2. This, below, is the disclosure the rebuttal memo quotes:

“was approached by an identified U.S. Person, who indicated to Source #1 that a U.S.-based law-firm had hired the identified U.S. Person to conduct research regarding Candidate #1’s ties to Russia. (The identified U.S. Person and Source #1 have a long-standing business relationship.) The identified U.S. person hired Source #1 to conduct this research. The identified U.S. Person never advised Source #1 as to the motivation behind the research into Candidate #1’s ties to Russia. The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate No. 1’s campaign.”

There’s a lot not said in that.  But do note that this “source” that the rebuttal memo claims wasn’t key to the warrants… was “Source #1”.  Further, they don’t tell us when this disclosure was made.

Best Case For Believing The Rebuttal

Primarily what the new memo is stating is that the first memo left off information that either renders moot the tainted data used… because it wasn’t the only data used… or that demonstrated that the warrants provided useful data.  This shouldn’t be a very high bar, so it should be easy to believe this rebuttal memo.  (The reliably left/Trump-bashing Washington Post did a good, though biased and one-sided, annotation of how to believe the rebuttal memo.  It’s a good read, but balance it with more moderate/right read.)

Unfortunately for the rebuttal memo’s credibility, much of it is redacted… and cannot be judged for usefulness.   They really should have written it to be less secretive.  It is possible that there is additional evidence hidden behind that veil of secrecy, but it seems more likely that they intentionally wrote it to be redacted… as they were accused of doing initially… to hide their lack of a real rebuttal.

Some pundits are stating that the “memo repudiates a key allegation that was made in the Nunes memo: that the FBI and DOJ were untruthful to the FISC“.. in this case, Carrie Cordero, an adjunct professor at Georgetown Law School.  But she follows that with saying the claim was “debunked.”  That seems a bit of a stretch; at best, this new memo adds context around some of the first memo’s claims.

But the rebuttal memo does highlight that the FISA warrants may have depended on results from the Russia investigation, which both preceded the FISA application and was based on comments from George Papadopoulos to an Australian diplomat, which Australia forwarded on.  That investigation started in July 2016, well before Carter Page was under investigation (December 2016.)   This would suggest that the Steele Dossier was not needed for at least some of these warrants.

Best Case Against The Rebuttal

The Democrat memo acknowledges that much of the evidence in the FISA warrant applications  all this false evidence.  And then states that, while they were submitted, they “played no role in launching” the investigations etc.  (top of page 3.)  They don’t prove this, and it seems incredibly unlikely.  The FBI and DOJ would not have allowed their filings to be tainted with that (false) evidence if they didn’t need it.

Leaks and Secrecy: The FBI has been caught both lying and leaking so far.  Former FBI Director James Comey admitted what looks like protecting Hillary Clinton, to the point where the Senate Judiciary Committee wrote a letter concerning it and his apparent prejudice in the case.

And FBI Director James Comey leaked classified government data to Columbia Law School professor Daniel Richmanwhile fighting in court to protect the same data’s secrecy six months later!  

The FBI lied about these leaks and the documents, and continued lying until caught.

The FBI refused to declassify the Christopher Steele criminal referralwhich wasn’t even produced by the FBI – until forced by the Senate Judiciary Committee.  This shouldn’t have been classified, and the FBI stonewalling the Senate Judiciary Committee suggests the FBI has an agenda.

Let’s not forget the rest of the FBI fiasco:

The Democrats (and Politico, which is more reliably Democrat than, say, Fox is Republican) are stating that “The Democrats’ memo was shared with the FBI and Justice – something Republicans did not do before releasing their document” (Schiff, quoted in Politico.)

But that’s simply not true.  Representatives from both the DOJ and FBI reviewed the Nunes memo before it was released.  Even the Democratic memo acknowledges this, midway down Page 2.

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