It's fair to say that much of the media reaction to the House Intelligence Committee "FISA abuse" memo has been a mixture of scorn and ridicule. Many commentators have called the memo wrong, worthless, or worse.
House Republicans expected as much, from the usual suspects. But amid all the name-calling, there have been three serious and substantial questions raised about the memo that deserve a closer look:
1) What did Andrew McCabe say? The memo said the Christopher Steele opposition-research dossier was an "essential" part of the application for a warrant to wiretap Carter Page, who was briefly a member of candidate Donald Trump's foreign policy advisory board. To support that characterization, the memo said Andrew McCabe, then the FBI's deputy director, "testified before the committee in December 2017 that no surveillance warrant would have been sought from the [Foreign Intelligence Surveillance Act court] without the Steele dossier information."
Democrats said the memo was flat wrong. "He didn't say that," Intelligence Committee member Eric Swalwell told CNN Friday. "It mischaracterizes what he said."
Asked what McCabe did, in fact, say, Swalwell said he could not disclose classified information.
Also on CNN, the committee's top Democrat, Adam Schiff, was asked whether McCabe said what's in the memo. "Well, the language that's used in the memo was not his language," Schiff said. "And unfortunately, I can't give you precisely what he said, both because I can't do it from memory, but more than that he talked about the fact — I can say in very general terms that a FISA application is viewed in its totality. And each part of the application is important to the application."
Neither Schiff nor Swalwell offered proof that McCabe was misquoted. And Republicans who have read the McCabe transcript said the memo's characterization of McCabe's statement is accurate. In addition, they cited another FBI official who, when asked what the application's chances of being approved would have been without the dossier, answered about 50-50 — unacceptably low odds when applying for a surveillance warrant.
Asked about the McCabe statement by Fox News' Bret Baier, Intelligence Committee chairman Devin Nunes stuck by the memo. "It's a summation of a long interview," Nunes said. "And that is definitely what he said — not to mention we have other witnesses who said very similar things."
The obvious way to answer the question definitively is to release the transcript of the McCabe interview. Until that is done, however, Democrats haven't made a very persuasive case on this point.
2) Did the FBI tell the court about the Hillary Clinton campaign's involvement in the Steele dossier? The memo says the FBI used the dossier to get a warrant on Page, but, "Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the [Democratic National Committee], Clinton campaign, or any party/campaign in funding Steele's efforts."
That passage appears to be indisputably true. No one is claiming the FBI informed the court that the Clinton campaign and the DNC were behind the Steele dossier. But Democrats have still pushed back by arguing that the FBI did tell the court that the Steele information came out of a political context, that it kinda, sorta gave the court the idea that a source was politically motivated.
Exactly how the FBI did that is not clear. So far, news reports are all over the lot. The Wall Street Journal reported that the FBI "did disclose Mr. Steele was being paid by a law firm working for a major political party." The New York Times reported that the FISA application "was more forthcoming with the surveillance court than the Republicans say. The FBI told the court that the information it received from Mr. Steele was politically motivated, though the agency did not say it was financed by Democrats." And the Washington Post reported that the court "was aware that some of the information underpinning the warrant request was paid for by a political entity, although the application did not specifically name the Democratic National Committee or the Hillary Clinton presidential campaign."
None of that disproves or contradicts what the memo said. Sources familiar with the application suggest that it noted there might have been a political motivation behind some of the information. But Republicans ask why it would be acceptable for the FBI to actively withhold from the court the fact that the Clinton campaign and the DNC specifically were behind the Steele dossier. It's not clear what the Democratic answer to that will be in coming days.
3) Why didn't the memo mention Carter Page's history? On this, the critics have a point, although not as big a point as they might think. Page was caught up (and wiretapped) in a 2013 case against Russian agents in New York who were trying to recruit Americans, including Page. Page was never charged, he was not a Russian agent, and the case ended with no action against him. Nevertheless, Page's history is relevant to the FBI's interest in him in the Trump-Russia case — after all, Trump appointed to his foreign policy team a man who had once been wiretapped in a Russia-related FBI investigation.
According to knowledgeable sources, the FBI did include references to Page's past as background material in the wiretapping application. It wasn't a big part of the application, but it was a part, and the House committee should have included a sentence on that in the memo. When the FBI went public before the memo's release with the charge that it contained "material omissions of fact that fundamentally impact the memo's accuracy," the bureau was referring to the Page history omission.
On the other hand, the suggestion that Page's history was vitally important seems off base. After conversations with multiple sources, it appears the FISA surveillance application relied on five categories of information: 1) the dossier; 2) a Yahoo News article based mostly on the dossier; 3) the George Papadopoulos case; 4) Page's history; and 5) a general survey of Russian bad deeds.
According to those sources, the dossier made up by far the largest part of the case for wiretapping Page. The Yahoo story was "cited extensively," as well. The Papadopoulos case, Page's history, and the general discussion of Russian ill will made up a much smaller part. So it appears the memo was correct when it described the dossier as an "essential" part of the warrant application. Still, even though Page's history was a relatively small part of the story, the House should have mentioned it, if only to address the FBI's concern about leaving a material fact out of the memo.
So those are some of the objections and questions raised about the House memo. Though repeated loudly and often, they don't have much merit, and the memo's key assertion — that the unverified, oppo-research dossier played an essential role in securing a warrant to wiretap Carter Page — appears sound.