Congressional Republicans / Republican Congress / Trump Administration

Friday Night Massacre: Is the Nunes Memo Release a Ruse to Fire Rosenstein and Mueller


The current tempest engulfing Washington involves a memo prepared at the direction of House Intelligence Committee Chairman Devin Nunes (R-CA) concerning a Foreign Intelligence Surveillance Act warrant for Carter Page.

Who is Devin Nunes?

Nunes is an eight-term Republican Congressman from California’s San Joaquin Valley, who chairs the House Intelligence Committee which is conducting an investigation into the Russian interference with the 2016 election.  Nunes also was a member of the Trump transition team and came under fire in March for trying to push a debunked claim that the Obama administration conducted surveillance on the Trump transition team.  He briefly “recused” himself from the investigation, only to un-recuse himself.

Who is Carter Page?

Page is an energy industry executive who was a foreign policy advisor to the Trump campaign from March 2016.  Page had lived in Moscow from 2004 to 2007 while working for Merrill Lynch.

In 2013, FBI intercepts caught a meeting between Russian spies and Page in which they sought out Page as a source of information.  He was interviewed by the FBI later that year.

In July he traveled back to Moscow to give a lecture and reportedly met with the president of Rosneft (a Russian energy firm) and a Kremlin official.  Page reportedly raised lifting sanctions on Russia in exchange for getting a stake in Rosneft.

Page also admitted to a brief interaction with Russian deputy prime minister Arkady Dvorkovich during that July trip. In a memo sent to the campaign after his return, though, Page wrote that in a “private meeting,” Dvorkovich had “expressed strong support for Mr. Trump and a desire to work together toward devising better solutions in response to a vast range of current international problems.”

When these meetings became public in September 2016, Page was forced to leave the campaign.  A FISA warrant was not sought on Page until October 19, 2016.  The warrant was sufficient to be renewed under President Trump by Deputy Attorney General Rod J. Rosenstein this spring.  See Philip Bump, What we know about the warrant to surveil Carter Page, Washington Post (Jan 31, 2018).

What is the Nunes Memo?

Embed from Getty Images

Nunes, who has been called a “Trump stooge” by his hometown newspaper, had his staff prepare a four-page memo written that alleges that the Federal Bureau of Investigation “may have relied on politically motivated or questionable sources” to obtain a Foreign Intelligence Surveillance Act warrant in the early phases of the FBI’s investigation into Russian interference in the 2016 United States elections.

Nunes, apparently, seeks to portray the initial Carter FISA warrant as being based on the so-called Steele Dossier which famously alleged that Trump had Russian hookers pee on him and which was partly funded by Democratic sources.  Reliance on the dossier would make it is a partisan witch hunt of a Trump campaign official in Nunes view, even though:

  • The record is clear that the FBI had been tracking Page for some time and had independent evidence of his meeting with Russian sources in 2016;
  • Page was not part of the Trump campaign or transition at the time the warrant was issued; and
  • Many of the other allegations in the dossier have since been confirmed.

Here is a flavor of what is being said by the #releasethememo advocates.

So Hannity, Gingrich, Nunes et al would have you believe that the very same Justice Department that tipped the election to Trump by making an announcement concerning Secretary Clinton’s emails in the campaigns final days was somehow also in bed with the Democratic establishment.  It is worth noting that Russian bots have been behind a #releasethememo surge on Twitter.

By partisan vote, the House Intelligence Committee has voted to release the memo, but not a corresponding Democratic memo that challenges in the memo’s inaccuracies.  The memo has been provided to the White House to review, but it appears that Nunes has made further material changes to the memo after winning Committee approval to disclose the memo.

Deputy Attorney General Rosenstein and FBI Director Christopher A. Wray oppose release of the memo which could be used to undermine the credibility of the FISA warrants and the FBI in many proceedings beyond the current investigation.  The FBI took the unusual step to stress that they have “grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.”

President Trump was heard on a hot mic following the State of the Union assuring one Congressman that the memo would be released and Speaker Paul Ryan also supports the release of the memo stating it was time to “cleanse the FBI”.  The memo could be released as early as today.

Releasing the Memo and its Fallout

The Trump administration likely would release the Nunes Memo counting on its allies in Congress, right-wing media and social media to drive the narrative that the Russia investigation is a partisan witch hunt to stir outrage directed at the Special Counsel Robert Muehler and Deputy Attorney General Rosenstein who approved the extension of the Carter Page FISA warrant.

Given that President Trump recently asked Rosenstein to pledge his loyalty, as he had with Comey before his firing, Trump can use the outrage from the memo as a pretext for firing Rosenstein.

Using the Recess to Replace Rosenstein with a Loyalist

Here’s why the timing is important and I hope I am proven wrong on this next point.  Congress currently is in a brief post-State of the Union recess and will reconvene next week.  This gives Trump the opportunity to not only fire Rosenstein, but make a recess appointment of a loyalist as his successor and avoid any confirmation battle.  Once a loyalist is installed he can shut down the Muehler investigation altogether.

Sure the Supreme Court recently held that short recesses such as three days was

too short a time to bring a recess within the scope of the Clause. Thus we conclude that the President lacked the power to make the recess appointments here at issue.

Nat’l Labor Relations Bd. v. Canning, 134 S.Ct. 2550, 2557 (2014).  I honestly do not think that this opinion would be sufficient to deter Trump.  By the time this was adjudicated, however, Trump would have safely reached the midterms with the Mueller investigation closed.

It is a huge gamble, but Speaker Ryan’s “cleansing” comment clearly is giving Trump the green light to take action to shut the investigation down.

In Watergate, President Nixon faced a Democratic Congress with at least some moderate Republicans expressing outrage over the Saturday Night Massacre.  Throughout the Trump administration, however, Speaker Ryan, Majority Leader McConnell and most other Republicans have repeatedly chosen loyalty to the President over their sworn oath to protect and defend the Constitution.

Should Trump follow the tried and tested path of dumping bad news on Friday afternoons and fire Rosenstein at that time, I doubt that few Republicans would object.  Trump also would have the cover of the Super Bowl to distract or dilute the outcry that would follow.

In an administration that has broken all sorts of past norms for acceptable behavior, why would they suddenly become boy scouts now? why would they suddenly become boy scouts now?