Norman Eisen, a senior fellow at the Brookings Institution, is the chairman of CREW. Caroline Fredrickson is president of the American Constitution Society (ACS). Noah Bookbinder is the executive director of Citizens for Responsibility and Ethics in Washington (CREW).

The FBI issued an extraordinary statement on Wednesday, pushing back on the release of a partisan congressional memo alleging the bureau used improper evidence to obtain legal permission to surveil a Trump campaign adviser. We’ve never seen anything like it. “[T]he FBI was provided a limited opportunity to review this memo the day before the committee voted to release it,” the bureau said. “As expressed during our initial review, we have grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.”

The memo, written by Congressman Devin Nunes and barreling toward public circulation at the president’s discretion, has already created a firestorm, and it is not even out yet. Nunes fired back at the FBI hours later, claiming, “It’s clear that top officials used unverified information in a court document to fuel a counterintelligence investigation during an American political campaign.”


Let’s be clear about what’s happening here: This memo is the latest escalation in an eight-month effort to tarnish the Russia investigation that might be the most significant smear campaign against the executive branch since Joe McCarthy—only here, the effort is being led by the head of that branch himself. As the New York Times reported, the Nunes memo seems like a dagger aimed by President Trump at Deputy Attorney General Rod Rosenstein, who is supervising the Russia probe for the Justice Department.

Republican huzzahs over Special Counsel Robert Mueller’s appointment were still echoing when the opening salvo of this shocking campaign was launched: the claim that Mueller had disqualifying “conflicts.” Never mind that the Justice Department cleared Mueller of conflicts before he was appointed. Or that ethical standards do not remotely support disqualification over issues like Mueller’s professional acquaintance with James Comey, his employment at a firm that represented Trump associates, or even a long-ago dispute over the amount of fees Mueller owed at a Trump golf course. These meritless conflicts claims have continued to resurface like a game of whack-a-mole, popping up elsewhere after they are knocked down.

The next smear targeted the members of Mueller’s team. President Trump and his supporters loudly complained of political bias because some of Mueller’s lawyers have donated to Democrats. But Mueller is prohibited from asking his hires about their political contributions; applicable laws and regulations bar him from considering such matters in making employment decisions. Moreover, Mueller himself was a registered Republican the last time anyone checked and was appointed by another: Rosenstein.

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When that assault didn’t stick, then came the allegation that the investigation had improperly obtained emails from Trump transition email accounts. The initial flurry of attention—including mention by the president himself—soon faded when the General Services Administration said the transition had been told its emails would not be protected, and experts nearly unanimously dismissed any impropriety. Indeed, the claims turned out to be so weak that President Trump’s transition legal team didn’t even press them in court, instead settling for a complaining letter to Congress. When faced with resounding pushback, the reply was to slink away—but not before filling the airwaves with days of unfounded insinuations.

That was when the president and his supporters upped the ante. For a time, there was a focus on sensational claims about the conduct of two DOJ employees as evidence of anti-Trump bias. One was Peter Strzok, an FBI specialist in Russia matters who sent negative texts about Trump to a colleague. The other is Bruce Ohr, a career attorney at DOJ who was never assigned to Mueller’s team and whose wife worked for Fusion GPS—the firm behind the dossier compiled by former British intelligence officer Christopher Steele (more on that in a second). Here too, the facts proved inconvenient: It turned out Mueller axed Strzok from the investigation when the texts came to light, and Ohr was reassigned after DOJ learned that he had failed to disclose contacts with individuals at the firm. (Then there is today’s news that Strzok co-authored the pre-election FBI letter that many believe sunk the Clinton campaign—hardly proof of pro-Clinton bias.) The fact that Strzok and Ohr were reassigned and are now the subjects of internal DOJ investigations is a sign that the system is working, not that it is broken.

Nevertheless, the escalation continued even after the reassignments. The Trump spotlight turned to the Steele dossier, commissioned by an opposition research firm funded first by Republican opponents of Trump and then by representatives of the Clinton campaign. We haven’t read the Nunes memo, but Republicans have been whispering for weeks that the dossier served as the basis for the FBI’s Russia investigation and therefore tarnishes it.

Once again, the facts get in the way. Fusion GPS founder Glenn Simpson, who hired Steele, testified to Congress that the FBI believed the dossier to be credible “because they had other intelligence that indicated the same thing and one of those pieces of intelligence was a human source from inside the Trump Organization.” News reports indicate that the FBI had many other leads when it launched the investigation. These included a tip from Australian intelligence and the hacking and publishing of emails from the Democratic National Committee.

That brings us at last to Representative Nunes. His contribution to all of this is a memo that claims the FBI improperly obtained authorization to conduct surveillance on Trump campaign advisor Carter Page. Democrats on the committee unanimously opposed its release, asserting its claims of wrongdoing are unfounded and out of context and its release endangers our national security. Indeed, Trump’s own Justice Department objected to its release as “extraordinarily reckless,” and his handpicked FBI director reportedly trudged to the White House to voice his firm objections—before his bureau’s formal objections were made public on Wednesday. Just like the other smears that preceded it, this latest one completely lacks credibility.

All this has built steadily toward a crisis for American democracy—a Saturday Night Massacre in slow motion. Press reports suggest the president may be contemplating using the memo to dismiss Rosenstein. That matters: If the president were to use his powers to insert someone lacking independence, that person could throttle the special counsel.

That move would, however, risk deepening the president’s obstruction of justice liability, and that of those around him who are involved in the decision. After all, firing Comey on dubious grounds with the alleged intent to hamper the Russia investigation led to an obstruction investigation. Cashiering Rosenstein would offer a matching bookend. That is particularly so in light of another startling report today: that the president sought details about the Russia investigation from Rosenstein, then asked him, “Are you on my team?” This echoes Trump’s demand for loyalty from Comey that helped kick off the obstruction investigation.

Rosenstein’s failure to provide sufficient answers has put his head on the chopping block, with the president reportedly preparing to use the memo as a pretext. This targeting of the deputy attorney general also makes clear the larger motivations of the smear campaign. It is plainly obstructive of the Russia investigation. From Trump on down, the hope seems to be that the best defense will prove to be a good offense. This is exactly the playbook Trump used to run when he was a slick up-and-coming Manhattan developer taking advice from the late Roy Cohn: attack, attack attack. But this is the presidency, and Trump has failed to learn the lesson of Cohn’s previous client and patron, Joe McCarthy. It’s not going to go the way he thinks.