‘Facts Be Damned’

Devin Nunes’ Anti-FBI Memo Names James Comey, Rod Rosenstein, and Andrew McCabe

The Department of Justice called the plan to release it to the public ‘extraordinarily reckless.’


A controversial Republican memo alleging surveillance abuse specifically names FBI Deputy Director Andrew McCabe and Deputy Attorney General Rod Rosenstein along with former FBI Director James Comey.

Capitol Hill sources on both sides of the aisle say the memo’s release is only a matter of time. And when it comes out, these current and former officials — all GOP bêtes noires — are likely to face even more criticism from the right over their involvement in FBI counterintelligence work.

Republicans, including Trump himself, have spent months attacking McCabe and Comey while special counsel Robert Mueller has been investigating Team Trump’s connections to the Kremlin. Rosenstein put that probe in place—a move Trump has derided as a witch hunt.

A groundswell is building to release the memo—written by Devin Nunes, the California Republican and key Trump ally who chairs the House intelligence committee—which former FBI agents fear will damage public trust in the bureau. While Democrats say the memo deliberately misrepresents the procedures for obtaining a foreign-intelligence surveillance warrant, The Daily Beast has learned that Hill Republicans are gearing up to use an obscure parliamentary rule to release it.

Meanwhile, the Justice Department has expressed serious concerns about the memo’s potential release. In a letter sent to Nunes on Jan. 24, Stephen Boyd, the department’s top congressional liaison, wrote that “it would be extraordinarily reckless for the Committee to disclose such information publicly without giving the Department and the FBI the opportunity to review the memorandum and to advise the HPSCI [the House intelligence committee] of the risk of harm to national security and to ongoing investigations that could come from public release.”

That letter also said the department is “unaware of any wrongdoing” related to the FISA process—indicating the department disagrees with the scores of congressional Republicans who say Nunes’ memo provides proof of wrongdoing.

Rep. Chris Collins, a New York Republican, told The Daily Beast that Nunes has told Republicans his staff spent months putting the memo together.

On Jan. 18, the House intelligence committee voted along party lines to let all House members read the memo compiled by Nunes and his Republican staff based on highly classified intelligence the FBI shared with a few members of Congress.

The news spawned the hashtag #releasethememo, with actors ranging from WikiLeaks to the ACLU to Michael Flynn Jr. calling for the memo to be made public. Democrats have emphasized Russian bots’ efforts to boost the hashtag, but a well-placed source told The Daily Beast yesterday that the bulk of the support for the social media campaign comes from actual Americans on the right.

The memo is enormously controversial. Hill Democrats and former FBI officials say it’s a ploy to damage public confidence in the FBI and undermine Mueller’s investigation. Republicans, meanwhile, say the memo contains massively disturbing evidence of FBI wrongdoing.

The recent Republican attacks on the bureau are taking a toll on current agents and analysts, two former senior FBI officials told The Daily Beast.

Ron Hosko, who formerly headed the FBI’s criminal investigative division, said morale in the bureau is “sagging.” Some officials could barely leave their houses to string up Christmas lights without being accosted by their neighbors about the bureau’s apparent troubles, he said.

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He added that members of Congress who argue that the FBI hastily obtained a surveillance order known as a FISA warrant based on British ex-spy Christopher Steele’s dossier of salacious allegations are nothing but conspiracy theorists.

“I think there are people who are intent on damaging the FBI, facts be damned,” he said.

Ali Soufan, a retired FBI counterterrorism special agent, warned that the attacks on the bureau were draining their accusers’ credibility.

“Some of the Republicans attacking the FBI are isolating themselves from otherwise sympathetic FBI agents. It’s no secret that the FBI tends to lean conservative,” Soufan said.

“The few GOP politicians attacking the FBI are, frankly, demagogues. They’re putting party and self-interest above country. They are damaging national security. They unfortunately gave up any moral authority.”

To make the memo public, House Republicans are considering the use of an arcane, little-known process from the House of Representatives’ rules of procedure (PDF).

Rule X, subsection 11(g), lays out a process for releasing classified material even over objections by the president of the United States.

The rule only comes up on extremely rare occasions, according to veterans of contentious declassification disputes between the intelligence agencies and their congressional overseers.

Typically, when Congress requests a declassification, an internal review occurs within the relevant agency or agencies. It’s captained substantially by the attorney general, the director of national intelligence, and the CIA director, depending on the particular agencies with substantial equities in the disclosure at issue. When multiple intelligence agencies are involved, the director of national intelligence runs the process.

“It doesn’t typically need to be invoked,” said Robert Litt, who never saw the House use it during his seven-plus years as the senior lawyer at the Office of the Director of National Intelligence under ex-directors James Clapper and Dennis Blair. “It’s only if Congress wants to declassify something the executive branch doesn’t want declassified.”

Under the rule, if a clash occurs between the House intelligence committee and the executive branch over keeping something secret, the president gets five days to deliver objections that cite a danger to national security posed by disclosure. Should the dispute persist, the committee can vote to take the matter to the full House of Representatives to consider. The full House’s debate is to occur in secret, with a public vote determining the outcome.

The president, however, can simply decide on his own to declassify anything. And in Trump’s case, his spokesperson is on the record supporting declassification.

“We certainly support full transparency. We believe that’s at the House intel committee to make that decision at this point,” Sarah Huckabee Sanders, the White House press secretary, said Tuesday. “It sounds like there are some members in the House that have some real concern about what’s in that memo and feel very strongly that the American public should be privy to see it.”

Sanders is procedurally correct. The entire Rule X subsection 11(g) process depends on the House intelligence committee initially voting for declassification. While the committee voted last Thursday to permit House members outside the committee to view the still-classified memo in a secured room, a declassification vote has yet to occur, the top Democrat on the panel indicated Wednesday.

“It now appears that the GOP intends to seek further dissemination of this classified information, this time to the public,” Rep. Adam Schiff (D-CA) said in a statement, adding that Democrats had drafted a counter-memo “setting out the relevant facts and exposing the misleading character of the Republicans’ document so that members of the House are not left with an erroneous impression of the dedicated professionals at the FBI and DOJ.”

Asked if an internal executive branch declassification process has begun, a spokesman for the office of the director of national intelligence replied: “We don’t have anything on this matter.”

FBI officials asked to see Nunes’ memo, but a spokesperson told The Daily Beast on Sunday that their request was denied.

At this point, congressional sources on both sides of the aisle say they think the memo’s release is inevitable. Nunes holds the reins. Speaker Paul Ryan and Majority Leader Kevin McCarthy are deferring to Nunes as to how to handle the memo, according to leadership aides.

“It is the mood of our conference, clearly, to release it,” said Rep. Collins. “And I would think it’s safe to say, based on Devin outlining the ins and outs and crossing of the t’s and dotting of the i’s to do this right, that that would be his intention as well.”

Inside the bureau, former special agent Soufan said there was “disappointment and frustration” over the right’s attacks, but not surprise.

“It’s not the first time we’ve been attacked [by politicians] and it won’t be the last. A lot of [FBI] people are very disappointed, but they’re tuning it out and they’re going to support the mission,” Soufan said.