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With Dueling Claims About FISA Abuse, Whom Should You Believe?


If you’re following the Nunes FISA memo story and asking yourself how the two sides of the argument can have such starkly divergent opinions of the veracity of the memo and the handling of the FISA applications writ large, you’re not alone. It’s a great question.

Rep. Adam Schiff and his fellow Democrats on the House Permanent Select Committee on Intelligence (HPSCI) are absolutely certain the FBI and Department of Justice followed appropriate procedures in applying for and obtaining FISA warrant(s) to monitor the communications of one or more members of the Trump transition team.

Rep. Devin Nunes and his fellow Republicans on the HPSCI are absolutely certain the FBI and DoJ inappropriately included tainted or uncorroborated information, likely from the controversial Christopher Steele dossier, in their application for the warrant(s), and suggest that the use of such information was a clear violation of the civil liberties of the individual(s) targeted in the warrant(s).

So who to believe? It’s not as if there’s a simple disagreement in principle, or differing opinions on the degree of harm caused by how the FBI may or may not have bungled the FISA application. The divergence is absolute: It’s either one of the most egregious examples of FBI malfeasance and abuse of surveillance authorities in modern times, or it’s nothing to worry about. Didn’t happen.

Smart people will tell us that the truth lies somewhere in the middle, but the people who have seen the evidence keep telling those smart people that they’re wrong — there is no middle here.

Given the futility of trying to reconcile two competing absolutes, we fall back on what we know best: our own political biases and feelings about the parties and individuals involved in this fracas. Those on the left can faithfully argue that Nunes is a Trump-worshiping stooge whose actions are in service of his master’s desire to muddy the waters of Robert Mueller’s investigation into possible crimes committed by Trump and his cronies.

The Right can counter that argument by questioning the motives and agenda of Schiff, whose ubiquitous cable news declarations of “damning” circumstantial evidence suggesting Trump’s guilt have worn thin after a year of repetition without resolution, or proof. While all of this may make both sides feel better about their team’s position on the field, it doesn’t help answer the question: Who to believe?

But there is another way to try to figure it out, a non-ideological lens through which to view and assess the actions of all the players in this drama, and all it requires is an honest answer to a simple question: Who has the most to lose here? The answer to that question will help you decide who’s closer to the truth in this matter.

Why Politicians Are Risk-Adverse

Politicians don’t like to take risks. You see it in the way they respond to questions, the way they vote, and the way they (or most of them, at least) conduct themselves outside of the office, or on social media. Bland and non-controversial is the rule and, other than Donald Trump, there are few exceptions.

Campaign events are planned and choreographed down to the racial composition of attendees within camera view. Legislative positions are preordained to stay within the boundaries of their party platform and seldom, if ever, venture outside. Those who do are often feted by the press as “mavericks,” for the simple act of speaking or voting their conscience — provided their conscience on the issue diverges from that of their party. As you read this, you’re probably thinking of one or two politicians, which speaks to the point: There are very few mavericks.

The reason politicians don’t like to take risks (and for the corresponding dearth of mavericks) is because they’ve learned through experience that the upside is seldom, if ever, as rewarding as the downside is disastrous. In politics, the upside is always temporary, while the downside is often final. It’s one thing to criticize your rivals, to question their motives, patriotism, or credibility, or to declare their position on an issue un-American, or evil. None of that can ever be proven demonstrably wrong. They are statements of opinion, the downside of which is negligible. If you’re wrong, you can recover. But it’s another thing entirely to engage in a public, running war with your rivals, throwing out words like “treason,” “Watergate,” and “cover-up.”

So when we see a slew of politicians throwing themselves at live cameras to announce with absolute certainty that the Nunes memo is either a “slam dunk,” or a “nothing-burger,” our ears perk up a bit. These people all know that this particular issue is of intense interest throughout the country. They know that people are paying close attention to every word. Most significantly, they know that we will all soon have the answer to the central question: Who to believe? One side is telling the truth, and one side is lying.

There will be no hiding from this. No discrete apology “if anyone was offended.” No “I regret that I misspoke.” The day that memo is released, the credibility and reputation of every politician who’s taken a public stance on its veracity will be at risk. They all know this better than any of us, yet they’ve uncharacteristically cast their lot anyway, fully cognizant of the looming disaster that will befall those proven to have misled the nation. To paraphrase Joe Biden, this is a big freaking deal.

Who Has the Most to Lose?

How big a deal it’ll actually be depends upon your perspective. If you’ve already made up your mind, based either on your understanding of issues at play or simply on your instinct to believe and support whatever political side you’re on, you may be inclined to give your side the benefit of the doubt if they’re proven wrong about the memo. Conversely, if you haven’t made up your mind and are still looking for something to tip you to one side or the other, it may help to ask yourself, “Who’s got the most to lose?”

While opinions will certainly vary, I’ll offer mine for consideration. Based on their public statements, their actions with respect to HPSCI proceedings, classification issues, and pushback from the FBI and DoJ, Nunes, the Republicans on the HPSCI, and the Republican Party have the most to lose. They have not only suggested, but guaranteed, that this memo and the underlying documents present legitimate cause and evidence to demonstrate malfeasance and misuse of surveillance authorities to violate civil liberties and unfairly target Trump transition members. The notion that the memo may not reflect this declaration does not allow for recovery. It either backs them up, or it doesn’t. If it doesn’t meet that standard, they lose.

The Democrats, on the other hand, have some wiggle room — some of it possibly legitimate, and some of it contrived. In short, they have less to lose. If the memo proves to be, as described above, a damning indictment of the actions of the FBI and DoJ — and Schiff and his colleagues have assured us it is not — they can continue to question the provenance of the memo’s conclusions.

Confident that the underlying documents are not likely to see the light of day, they can simply reiterate their position that the information in the memo was cherry-picked and misleading. They can also continue to claim that the publication of the memo places the intelligence community at risk, violates long-held agreements between congressional committees and the intelligence community regarding disclosure of classified information, and ultimately sets a dangerous precedent.

Taking into account all above, and mindful of the premise that no politician on earth would take this risk without either absolute confidence in his position, or a readily employed defense strategy if less confident, it would follow that the memo will likely represent what the Republicans claim it will.

Schiff and the Democrats have an out. Nunes and the Republicans don’t. If you believe in the unscientific notion that the party that took the biggest risk, had the most to lose, yet stuck to their position is likely the party to be believed in this matter, than your answer to the question, “Who to believe?” is Devin Nunes and the Republicans.

The good news is that we won’t have to wait long to test the theory. The bad news is that the only thing we can be certain of prior to the release of the memo is that someone in our government is lying to us.