Historical Thinking and the Nunes Memo

Image: House memo

How might a historian interpret the now-famous Nunes memo?

Mark Byrnes, chair of the Department of History at Wofford College in Spartanburg, South Carolina, breaks it down for us.  Here is a taste of his History News Network piece: “The Nunes Memo: ‘Bias,’ and the Skills of the Historian“:

The entire “argument” (such as it is) depends on the idea that a FISA warrant based—to any extent—on the so-called Steele dossier is inherently tainted, because the research done by the author, former British intelligence agent Christopher Steele, was paid for at some point by Democrats. Since the warrant targeted Carter Page, who had been part of the Trump campaign, the motive of the funders (not the researcher, it bears noting) to get “dirt” on Trump somehow discredits everything Steele found.

The memo contains not a single argument that the evidence used to obtain the warrant against Carter Page was actually false—only that it is somehow untrustworthy due to the alleged motive behind the research that produced the evidence.

In history, we deal with this problem all the time. We uncover evidence in primary sources, and must judge its credibility. Do we have reason to believe that the person who produced the evidence might have an agenda that should cause us to doubt the veracity of the evidence? What do we do if the answer to that question is “yes,” or even “maybe”?

I do a primary source exercise in my methods class that does just this: presents the students with conflicting primary source accounts of an event. I then explain why the people who produced the evidence might have self-serving reasons for portraying the event in a particular light.

Most students, when first faced with this dilemma, immediately say “bias!” and dismiss the evidence as worthless. That is the reaction the Nunes memo seems intended to produce among the general public.

But that is not how the historian reacts. Yes, the source of the evidence may have some bias. That does not, however, by itself mean that the information is false. It does mean that when weighing its validity, the historian must look for other, independent, corroborating evidence before trusting it.

It seems likely that is what the officials who used the Steele dossier to obtain the FISA warrant did: they compared what Steele wrote to other information they had about Carter Page to see if it lined up.

Read the rest here.  Thanks to TWOILH reader John Shaw for bringing this piece to my attention.

3 thoughts on “Historical Thinking and the Nunes Memo

  1. You and Professor Byrnes do your readers a serious disservice by mocking the HPSCI memo. Your superficial analysis of the memo reveals that neither you nor he has taken the time to understand either the facts, the law, or the issues.

    Federal agents wanted the FISA Court to issue a warrant authorizing them to intercept and review Mr. Page’s communications. In order to obtain a warrant, the agents had to satisfy the requirements of both the Fourth Amendment and the federal statutes governing the issuance of FISA warrants. In essence, the agents had to present evidence to the FISA Court sufficient to establish probable cause to believe Carter Page possessed evidence of criminal activity. The FISA Court’s job was to stand between the agents and their target in order to protect the latter’s constitutional rights. That’s something neither you nor Professor Byrnes seems to appreciate.

    Mr. Steele did not have first hand evidence about Mr. Page. To the contrary, he collected information from other persons. The DOJ and the FBI had an obligation to confirm the accuracy of Mr. Steele’s information before they presented it to the FISA Court. You and Professor Byrnes blithely assume federal agents fulfilled their obligation in that regard. The record is otherwise. Mr. Priestap testified “corroboration of the Steele dossier was in its ‘infancy’ at the time of the initial Page FISA application.” Mr. Comey testified in June of 2017 the information was “’salacious and unverified.’”

    You and Professor Byrnes assert Mr. Steele’s credibility is not an issue. You are mistaken. A conscientious judge, and the judges on the FISA Court are conscientious, would want to know whether Mr. Steele is a reliable collector of information. The fact he was paid by a political party to collect the information in question would prompt a conscientious judge to proceed more cautiously in assessing his reliability and the reliability of his sources.

    Neither you nor Mr. Byrnes is troubled by the attorneys’ decision to withhold relevant information from the FISA Court. Your indifference to ethics surprises me. Mr. Comey and the other attorneys involved in this situation owed a duty of candor to the FISA Court. Model Rule of Professional Conduct 3.3(d) is instructive: “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.” In other words, as officers of the court, Mr. Comey and the other attorneys had a duty to advise the FISA Court of information they possessed that arguably might have prompted the Court to deny either a FISA warrant or an extension. Failure to make such a disclosure constitutes unprofessional conduct.

    The best analysis of the HPSCI memo is being written by Andrew C. McCarthy at National Review. Anyone who hasn’t read Mr. McCarthy doesn’t know what’s going on.

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    • “Having now read both memos, I can say with confidence: Schiff makes his case. Schiff quotes key FBI documents that explicitly contradict the Nunes memo’s core arguments. Any fair-minded observer who reads these two documents side-by-side can only conclude one thing: Nunes is either deeply misinformed or straight-up lying.”
      “This is a pretty thorough demolition,” Julian Sanchez, an expert on surveillance at the libertarian Cato Institute, wrote on Twitter after reading Schiff’s memo.
      https://www.vox.com/world/2018/2/24/17048936/democrat-rebuttal-nunes-schiff-memo

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  2. I asked my students today to apply the 5 W’s to this memo. Since I am teaching the survey course, I have the students use the 5 W’s with all primary sources as well as any source of information. They are going over it and will have answers on Wednesday. I find using modern information a good way to get them to start applying the 5 W’s so they can get more practice in analyzing information instead of through news media. It is pretty apparent that the media outlets are having a heyday spinning this memo to meet the hearing demands of their audience in order to cash on the ratings.

    I am certain that will not dissuade those who want the memo to mean something that it does not. Those folks seem to have a problem through which they “read” things into documents that aren’t there. When historical analysis utilizing critical thinking processes is applied, the result is what Mark Brynes has come up with above.

    Great post, John, and thanks for sharing it with us.

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