The Nunes Memo Is All Smoke, No Fire

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The #Memo has been released. This document from House Republicans promises to detail government abuses surrounding 2016 election surveillance. But the memo is more confusing than illuminating. It doesn’t so much provide evidence about abuses as make arguments that can’t be evaluated based on the facts it discloses.

Even assuming the memo’s claims are true — which we can’t determine from the document itself — it still does not establish an “abuse” of the foreign intelligence laws.

Here’s the relevant law. To get a surveillance warrant under the Foreign Intelligence Surveillance Act, the government has to persuade a judge of probable cause that the suspect was an agent of a foreign power.

Probable cause is not a high bar. It’s a common-sense inquiry, based on the totality of the circumstances, about whether a fair probability exists that the critical claim is true.

The government makes its case with a document taken under oath called an affidavit. It explains the government’s reasons for thinking probable cause exists.

Warrant affidavits don’t include everything known about every aspect of a case. Instead, they put forward evidence the government considers significant to establish whether probable cause exists.

And because warrant affidavits are inherently one-sided — the target is left in the dark — the government has the duty to include key facts that undercut its case. The government violates the law if it intentionally or recklessly omits important information that could defeat the probable cause finding.

The newly released memo accuses the Department of Justice and the F.B.I. of violating these principles. It claims that an affidavit to monitor Carter Page, the former Trump campaign foreign policy adviser, failed to point out reasons to discredit the former British intelligence agent Christopher Steele, whose research, according to the memo, was part of the basis for believing that Mr. Page was a foreign spy.

But the memo doesn’t make its case. It should prompt more confusion than outrage.

First, the memo mostly punts on the critical question: Was evidence provided by Mr. Steele important to finding probable cause? We just can’t tell. There may have been lots of other evidence showing Mr. Page was a Russian spy. If so, it doesn’t matter what (if anything) the affidavit said about Mr. Steele.

The memo does state in passing that Mr. Steele’s evidence was an essential part of the application. But we can’t make heads or tails of it without knowing what else was in the affidavit. Whether the memo is revealing a significant error or none at all depends on the big picture that the memo keeps secret. But we have no way to evaluate that, and critics are claiming it’s wrong.

Second, the memo offers scant detail on what the government told the court about Mr. Steele. We get only glimpses. The court knew Mr. Steele had been hired to do his research by a “named U.S. person,” the memo reports. On the other hand, judges were not specifically told about the role of the Democratic National Committee and the Clinton campaign in ultimately funding the investigation.

Without more details, however, it’s hard to know what to make of this. The court might have received a balanced and accurate picture of Mr. Steele’s credibility that did not specifically name the Democratic National Committee or Hillary Clinton. Without knowing all the facts of what the government told the court, we can’t tell if the government did anything wrong.

Third, the memo ignores the fact that judges usually expect informants to be biased without being told of it. Judges routinely uphold warrants in criminal cases that fail to disclose bias in informants far worse than Mr. Steele’s. An informant might be the target’s wife, who the government fails to point out is engaged in a bitter divorce battle with him. An informant might be a known criminal facing fresh charges, who the affidavit fails to disclose was promised a break if he shares information about others.

Judges expect this. As a result, courts say, it’s not necessarily a problem to omit it from the warrant affidavit. As one appellate court has written, only a “very naïve” judge would expect a source to “drop in off the street with such detailed evidence and not have an ulterior motive.” And who is more likely to lie: Criminals promised leniency or a former British intelligence agent hired for his expertise?

Finally, the memo questions the government’s evidence based on what we know today rather than what the government knew then. For example, it claims that the application relied on a Yahoo News article since traced to Mr. Steele without explaining the Steele connection.

Investigators are not expected to be clairvoyant. If they didn’t know the source of the Yahoo article at the time, it’s wouldn’t be wrong for them to include it.

The memo gives us too little information to make a conclusion about whether the government abused the surveillance laws. It’s a partial view when we need a panorama to know what happened.