The Nunes Memo and the Russia Investigation

We are witnessing the unfolding of the most fascinating scandal in the American political establishment since Watergate. I am referring, of course, to the revelations of the Nunes memo. Devin Nunes is the chairman of the House Intelligence Committee, which last week released a memo prepared for him by his staff that summarised the evidence presented to the committee about the FBI investigation into the Trump campaign's collusion with Russia.

In the last few days I have read many of the news reports about the release of the memo, the memo itself (which you can read here), some excellent analysis including this commentary in the Wall Street Journal (subscription required), and this long but detailed background from economist Ross McKitrick. It is particularly worth reading McKitrick's document because it goes back several years and links to earlier events such as the Hillary Clinton email scandal, and it accurately predicts what was in the Nunes document even though it was written before the release of the memo.

The key revelations of the Nunes memo are as follows:

• The FBI obtained a Foreign Intelligence Surveillance Act (FISA) warrant to carry out surveillance against Carter Page, a Trump campaign advisor, by presenting to the Foreign Intelligence Surveillance Court evidence that was contained in a dossier written by a former British intelligence officer, Christopher Steele. It is worth pointing out that FISA warrants usually allow "two hops", meaning that the entire Trump campaign staff including Donald Trump himself would have been subject to surveillance under this warrant.
• In applying for the warrant, and in subsequent renewals, the FBI did not reveal to the court that Christopher Steele was working for FusionGPS, a British research firm that was engaged by the Hillary Clinton campaign to conduct "opposition research" on Trump. The Clinton campaign paid FusionGPS nearly $1m to conduct the research, hiding the payment through a New York law firm called Perkins Coie. The FBI also did not reveal that they had significant doubts about the accuracy of the dossier, with then FBI Director James Comey calling it "salacious and unverified." The FISA warrants also relied on corroborating information from Yahoo News concerning a visit Page made to Russia in July 2016, which the FBI failed to disclose (and actually denied) also came from Christopher Steele. 
• FBI officers were clearly engaged in a campaign to discredit president-elect Donald Trump, with text communication between two officers who were involved in the investigation saying, "there’s no way [Trump] gets elected — but I’m afraid we can’t take that risk. It’s like an insurance policy in the unlikely event you die before you’re 40."

The Democrats and much of the media have criticised the release of the Nunes memo but no one has denied the salient facts, which indicate that the investigation into the collusion of the Trump campaign with the Russians was initiated because of highly doubtful information commissioned by the Clinton campaign, and that the FBI misled the court to obtain warrants. The latter is a very serious matter and McKitrick speculates that it will result in criminal charges, at a minimum against the FBI officers involved (including deputy director Andrew McCabe who resigned suddenly last week), Clinton aides such as Cheryl Mill and Huma Abedin, and possibly Hillary Clinton herself. He goes so far as to point out that presidential immunity from prosecution does not apply after a president leaves office, implying that if Obama knew about all of this, then he may face prosecution.

Finally, it is worth looking back on how Donald Trump has handled these matters. He received a great deal of criticism for sacking James Comey last year and was painted as a paranoid idiot for claiming that the Obama administration was carrying out surveillance against his staff at Trump Tower. We know he was considering sacking special investigator Robert Muller but decided not to. With what we now know, it looks like he was justified in all these actions. But other than that, he has remained largely aloof from the Russian investigation. 

I think Trump has played a blinder. He has given the FBI, the special investigator, and Hillary Clinton and the Democratic Party, all the rope they wanted. It is now tightening around their own necks.

No smoke, no fire in Trump investigation

The media has been in a feeding frenzy ever since Donald Trump was elected over his supposed ties to Russia and Vladimir Putin, with the implication that Russian agents subverted the 2016 election to get their man Trump elected. I have expressed scepticism (here and here) about this story because I could not see how it benefited Russia to have Trump elected.

Last week finally we got to hear former FBI Director James Comey's testimony to the Senate Intelligence Committee on the investigation into the matter and if you discard the ongoing media hype and the political grandstanding of the committee members, it absolutely bears out my scepticism. I have read through the hours of testimony and so that you don't have to, I have listed the key questions and Comey's answers below. The questioners are senators Richard Burr, the chair of the committee, and James Risch and Marco Rubio - all Republicans.

• BURR: Are you confident that no votes cast in the 2016 presidential election were altered?
• COMEY: I’m confident. By the time — when I left as director, I had seen no indication of that whatsoever.

• BURR: Director Comey, did the president at any time ask you to stop the FBI investigation into Russian involvement in the 2016 U.S. elections?
• COMEY: Not to my understanding, no.

• BURR: Did any individual working for this administration, including the Justice Department, ask you to stop the Russian investigation?
• COMEY: No.

• RISCH: ...while you were director, the president of the United States was not under investigation. Is that a fair statement?
• COMEY: That’s correct.

• RISCH: You talked with us shortly after February 14th, when the New York Times wrote an article that suggested that the Trump campaign was colluding with the Russians...so the American people can understand this, that report by the New York Times was not true. Is that a fair statement?
• COMEY: In the main, it was not true.

• RISCH: I want to drill right down...to the most recent dust-up regarding allegations that the president of the United States obstructed justice... He did not direct you to let [the Flynn investigation] go?
• COMEY: Not in his words, no.
• RISCH: He did not order you to let it go?
• COMEY: Again, those words are not an order.

• RUBIO: In essence, the president agreed with your statement that it would be great if we could have an investigation, all the facts came out and we found nothing. So he agreed that that would be ideal, but this cloud is still messing up my ability to do the rest of my agenda. Is that an accurate assessment of...
• COMEY: Yes, sir. He actually went farther than that. He — he said, “And if some of my satellites did something wrong, it’d be good to find that out.”
• RUBIO: Well, that’s the second part, and that is the satellites. He said, “If one of my satellites” — I imagine, by that, he meant some of the other people surrounding his campaign — “did something wrong, it would be great to know that, as well”?
• COMEY: Yes, sir. That’s what he said.

Comey mostly declined to answer questions about Michael Flynn, the short-lived National Security Advisor whom Trump fired after discovering he lied about his ties to the Russian Government, because that case is still the subject of an on-going investigation. This suggests that matter is the only investigation into any of the current or former members of the Trump administration that has any substance.

So, will this mean the end of the media campaign to paint Trump as a Manchurian Candidate? I doubt it, and even if it is, the media will just manufacture another set of false accusations to undermine Trump and his administration. In a Western liberal democracy, and under President Donald Trump, they have the freedom to say whatever they please. But we don't have to listen.

Why Comey had to go

I almost feel sorry for James Comey. He found himself in a no-win situation, having managed to alienate both Democrats and Republicans and his old and new bosses. I say 'almost' because the situation was largely of his own making. His experience is precisely why law enforcement officers, and public servants in general, should remain politically neutral in their jobs.

Comey began to dig himself a hole with his investigation of Hillary Clinton's use of a private email server for classified information. He closed the investigation and then reopened it right in the final stages of the presidential campaign, and then promptly closed it again. Those decisions stunk of political interference, or at least influence.

Then it was revealed that the FBI had been investigating the Trump team's connections to the Russians during the election campaign. I have written before about how I think the accusation of a Trump-Putin conspiracy is baseless, if for no other reason than Putin had nothing to gain and everything to lose from a Trump election. In any event, Clinton also had contact with the Russians during the campaign, and there is nothing wrong with a presidential candidate establishing links with important foreign leaders prior to taking office. Even if it is proven that the Russians acted to help Trump win, that is not illegal or even unusual - after all, President Obama tried to influence the outcome of the Brexit vote and did his best in the last Israeli election to stop Netanyahu being re-elected. Besides, nothing the Trump team might have done with the Russians could compare with the dealings Hillary Clinton and the Clinton Foundation had with Russian and Kazakhstani interests while she as Secretary of State was approving their takeover of American uranium mines.

Leaving aside the merits of the cases, I think the fact that the FBI was investigating both of the major candidates during the presidential election campaign - and in the case of the Clinton investigation, discussing it publicly - is a very unhealthy state of affairs for U.S. democracy. They say J. Edgar Hoover had an enormous influence on politics during his 37 years as FBI director but at least he had the good sense to play his cards close to his chest. Comey came to believe he was the most important player on the stage rather than someone who should stay in the background. Clearly, the job had got a bit much for him, or he had become a bit much for the job. 

Trump has done the right thing sacking Comey and I am sure Hillary Clinton would have done the same thing had she made it to the Oval Office. The President and the American public need to have confidence in their FBI director and clearly that was no longer the case.

FBI Director Wants Everyone to Leave Backdoors Unlocked so He Can Search at Will

The director of the US Federal Bureau of Investigation, James Comey, has called for technology companies to build 'backdoors' into their encryption systems so that the US Government can access anyone's digital communications. The most obvious flaw in his plan, as outlined in this article, is that any backdoor created for the US intelligence agencies can also be exploited by America's enemies. The vulnerability of US Government systems to hackers has been repeatedly proven, most recently with the hacking of the US Office of Personnel Management in which the confidential records of 21.5 million people who had been required to go through background checks for US government jobs were stolen, probably by the Chinese Government.

The naïveté of Comey's intentions is secondary, however, to the more important considerations of which he appears to be ignorant. It seems almost quaint to discuss the US Constitution and the Bill of Rights, given how utterly those documents have been philosophically shredded in recent decades, however the Fourth Amendment states that,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It is pretty unambiguous, isn't it? What part of that statement says that the US Government can require everyone to leave the digital equivalent of the backdoors of their houses unlocked so that one of its agencies can enter and search at will? Even the US Supreme Court, which has been only too willing to ignore James Madison's plain English and allow all sorts of unwarranted searches and seizures in recent decades, has to its credit upheld the rights of the people in respect of smartphones searches in two recent cases.

James Madison and many of his contemporaries originally thought that the powers granted to the Federal Government in the original seven articles of the US Constitution were implicitly limited, but they came to realise that the reverse was true. They understood that government power and individual rights were inherently in conflict and that for citizens to be sovereign (which is the most fundamental tenet of the US Declaration of Independence), government powers had to be explicitly limited. This is why the Bill of Rights was written.

James Comey believes the opposite to James Madison. The former believes the citizenry lives at the pleasure of the government and that therefore it is the right of the government to know everything about each and every one of its citizens, irrespective of whether there is reasonable cause to believe that a citizen has committed a crime. In James Comey's eyes, we are all guilty until proven innocent. This is why his view is so fundamentally wrong. It is why James Comey and his type that are the greatest threat to liberty today, rather than the threats from the likes of terrorist groups like ISIS that he uses to justify his demands for ever-greater power over our lives.