Ethics and Democracy

#ReleaseTheMemo is a Fake Scandal Designed To Obstruct Justice


There’s a confusing and just plain strange conspiracy campaign that has made its way through right-wing Internet channels and landed in our news feeds. It’s #ReleaseTheMemo, and you’ve probably seen more than a few headlines about it. Here’s what it is, and why it matters.

What is “the memo”?

First of all, it’s not really a memo. It’s a very short (apparently little more than three pages) collection of talking points put together by House Intelligence Committee Chair Devin Nunes (R-CA). Yes, that Nunes - the one who once claimed he was recusing himself from the Russia investigation (he’s now back on the case).

Nunes and other congressional Republicans want the public to believe that the “memo” (based on classified documents) contains dramatic evidence showing that current and former FBI and Department of Justice officials improperly gathered evidence on the Trump Administration’s connections with Russia, rendering the entire Mueller investigation an illegitimate witch hunt.

For weeks, Nunes and congressional Republicans have built up demands to “release the memo” (which remember, is their own political fabrication), implying that congressional Democrats are somehow withholding important information from the American people that would prove the Mueller investigation is really a politically-motivated FBI witch hunt against Trump.

This seems really absurd.

It sure does. That’s because it is.

The substance of “the memo” appears to be a giant nothingburger. Now that “the memo” (or, #mehmo) is public, there’s no evidence that has been brought forward to suggest either that the FBI acted unlawfully or improperly when it collected information about Trump and Russia, or that the Mueller investigation is illegitimate. In case you missed it, here’s our emergency Facebook Live that took place after the memo release.

The top Democrat on the House Intelligence Committee, Rep. Adam Schiff (D-CA), has a memo of his own that he wants released, which fact-checks the Nunes “memo.” The committee has now voted to release that memo as well, which is great, because we need all the relevant information to be public in order to accurately assess the truth. But Trump can block the memo from becoming public - we’re waiting to see what he does.

The facts are rapidly changing, spiraling into near parody: Nunes wouldn’t answer when asked if he’s coordinating with the White House on this entire stunt. His memo has now been released, and the committee has now voted to release the Democratic “rebuttal memo.” It’s now in Trump’s hands to decide if he wants to obstruct the Democratic memo from also seeing the light of day.

What’s this really about?

If you don’t focus on any of the other details in this “memo” fake scandal (we don’t blame you), focus on this: the entire thing is a PR stunt with the sole purpose of discrediting the Mueller investigation and shielding Trump from accountability. Period.

The memo attempts to paint a target on current and former FBI and Department of Justice officials, including Deputy Attorney General Rod Rosenstein. That’s significant, because he is currently supervising Robert Mueller’s investigation. This fake “memo” could give Trump cover to fire Rosenstein as a way to impede the Mueller investigation.

The bigger picture is that this is all part of an intense smear campaign against the Mueller investigation, which does real damage to our democratic institutions.

What does all this mean for checks and balances, and our institutions?

Trump seems to think that federal law agencies exist to serve his whims - to prosecute his political enemies, to crush dissent, or basically to carry out whatever it is that he wants to do. (Remember when he asked former FBI Director Comey for “loyalty”? He also reportedly asked Rosenstein if he was on Trump’s “team.”)

That’s not what they’re for. Federal law enforcement and intelligence agencies are a part of the executive branch and therefore a part of the administration, but they are staffed by career officials who should act independently in accordance with the law. They should reject unlawful and unconstitutional orders by any president.

Of course, those same agencies need to be overseen by Congress as part of our system of checks and balances in order to stay accountable. From the CIA’s use of torture to the FBI and DOJ’s abuses against activists and people of color, the intelligence and law enforcement community has a long history of corruption and misdeeds, made worse by the secrecy in which they operate.

Congress is supposed to conduct independent and rigorous oversight of those agencies. They’re supposed to hold open hearings, take testimony, conduct investigations and make sure that there’s transparency and accountability in how the executive branch operates.

But make no mistake: that’s not what’s happening here.

This isn’t a meaningful congressional investigation or oversight report. It’s a sloppy political stunt by Trump and Nunes and their friends that actually undermines those checks and balances.

What can you do?

The hard reality is that Trump and congressional GOP hold the political power at this moment. That means that even though we’d like to see Rep. Nunes removed from his committee over this fabricated scandal, it is up to Speaker Ryan and it’s incredibly unlikely that he’ll remove him. That is the hard, if unfortunate, truth.

It is important not to call any Member of Congress who does not represent you. You should only contact your MoCs. It might be tempting to call Nunes or Speaker Ryan, but that’s not productive unless you’re actually their constituents.

That doesn’t mean we can’t express our displeasure. We should - loudly.

If Trump blocks the Democratic memo from becoming public, Democrats should read their rebuttal memo into the congressional record. If Republicans and Trump are going to release the Nunes memo, we also need to see the Democrats’ rebuttal memo. This is one mechanism that Democrats can control on their own.

Any Member of Congress who has access to the Democratic memo, or can speak about its conclusions, should read it into the congressional record. The “Speech and Debate Clause” of the U.S. Constitution would protect that MoC from liability, even if the information is classified.

To be clear: this is a dramatic move. It’s the same thing that Senator Mike Gravel did in 1971 to disclose the “Pentagon Papers” - classified government documents that exposed the truth about the Vietnam War.

And, even though the Constitution would protect any Member of Congress who read the Democratic memo into the record from liability, that doesn’t mean they would be protected from other penalties such as losing committee placement or, at worst, being expelled from Congress. It would be a risk.

But, this is something that the minority party can control. If they are serious about releasing this information to the public, to rebut the Nunes “memo,” this is an option they should consider.

In the meantime, other Members of Congress should speak out and denounce the Nunes memo as a PR stunt. Then they should unequivocally state that if Trump were to fire Mueller or Rosenstein, or otherwise obstruct the investigation, that would be an unacceptable red line. Click here for resources to protect the Mueller investigation against Trump’s interference.

TO RECAP:

  • This memo is a manufactured non-scandal designed to help Trump escape accountability for his obstruction of justice.
  • Every Member of Congress should clearly call it out as a political stunt, and do everything they can to protect the Mueller investigation.
  • Any Member who has access to the rebuttal memo and believes the American public should have access to that information, should read it into the congressional record if Trump blocks it from becoming public.

SAMPLE CALL SCRIPT

General Script

Caller: Hi! I’m a constituent from [part of state]. I’m calling because I’m really disappointed that this Nunes memo is getting so much attention. It’s a see-through political stunt to hurt the Mueller investigation and shield Trump from accountability. Will [MoC] speak out and to denounce “the memo” and protect the Mueller investigation?

Staffer: Thank you for calling. [MoC] agrees and has concerns about this memo.

Caller: Great. Does [MoC] also believe that, if Trump were to use this memo as an excuse to fire Rosenstein or Mueller, that would be an unacceptable red line?

Staffer: My boss wants to let the investigations carry forward uninterrupted.

Caller: I would like to see [him/her] issue a public statement making clear that these are red lines, and that the memo is a Republican PR stunt and not an excuse to obstruct justice.Staffer: I’ll relay that concern to the boss.

If your MoC is a Democrat:

Caller: Great. Has [MoC] read the Democratic rebuttal memo?

Staffer: Yes, and we’d like to see it become public. We’re hopeful Trump won’t block its release.

Caller: If he does, I think that [MoC] should read it into the congressional record. The Constitution protects [him/her] from liability in sharing that information, even if it’s classified. We need to have that context in order to counter the misinformation of the Nunes “memo.”

Staffer: I’ll relay that request to the boss.

Caller: Yes, please do. We as constituents will back [him/her] up on this.