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THE LEAD WITH JAKE TAPPER

Nunes Memo is Out and Now Confuses People; Democrats and Republicans Picking Stones to Throw to Each Other. Aired 10-11p ET

Aired February 2, 2018 - 22:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


(COMMERCIAL BREAK)

[22:00:00] JAKE TAPPER, CNN HOST: OK. Anyway. Thanks, John. I'm Jake Tapper in Washington in for Don Lemon. Don is spending time with his family tonight as they mourn the loss of Don's eldest sister, L'Tanya Leisa Lemon Grimes. Of course, all of our thoughts and prayers are with Don and his family. We're thinking about you, Don.

I'm here with a special edition of The Lead on a day of huge developments in the Russia investigation. Today that heavily hyped memo from the republicans on the House intelligence committee finally dropped.

The big question tonight is, will another shoe drop? The president today declassifying the explosive memo, spearheaded by Chairman Devin Nunes, formerly of the Trump transition team.

The memo is the most explicit official republican effort yet to try to undermine the FBI and Mueller Russia investigation. It was released despite warnings from the president's own hand-picked FBI director and Justice Department officials. The president touting it as evidence of anti-Trump bias at the FBI.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I think it's a disgrace what's happening in our country. When you look at that and you see that and so many other things, what's going on, a lot of people should be ashamed of themselves.

(END VIDEO CLIP)

TAPPER: So, are we on the eve of a Saturday night massacre? Will president Trump fire his deputy Attorney General Rosenstein, who is named in the memo as having approved one of the surveillance warrants of a Trump campaign adviser? Rosenstein also supervises the Russia investigation.

President Trump was asked about Rosenstein's job security earlier today.

(BEGIN VIDEO CLIP)

TRUMP: You figure that one out.

(END VIDEO CLIP)

TAPPER: Do you still have confidence in Rosenstein? You figure that one out. A ringing lack of endorsement, especially from a president who has already fired FBI Director James Comey and forced out Deputy FBI Director Andrew McCabe, and threatened the jobs of Attorney General Jeff Sessions and special counsel Robert Mueller.

Sources are telling CNN this evening, the president is, quote, "unlikely ever to get beyond his anger at Rosenstein." The White House is saying that there will be no changes at the Justice Department. That as FBI Director Christopher Wray gave bureau employees today what's being described as a pep talk saying, quote, "the American people read the newspapers and watch TV, but your work is all that matters. Actions speak louder than words."

Joining me now to discuss all of this, we have CNN chief political analyst Gloria Borger, justice correspondent Evan Perez, Crime and Justice reporter, Shimon Prokupecz, and justice reporter Kara Scannell. Thanks to one and all for being here.

Evan, let me start with you. What has emerged as the most significant legal question based on this memo?

EVAN PEREZ, CNN JUSTICE CORRESPONDENT: Look, I think if you talk to republicans, they say that this memo raises real questions about what they say is a breakdown of the legal process.

The fruit of the poisonous tree, so to speak, that launches all of this investigation is what they say was a dossier paid for by democrats and Hillary Clinton campaign. They say that there were four memos -- obviously there were memo -- four FISA applications to do--.

(CROSSTALK)

TAPPER: The initial one and then the follow-ups.

PEREZ: To do surveillance on Carter Page. And they say that because there was information used from this so-called dossier, that it really wrecks all of this. It makes it illegitimate.

Look, I think if you look at this three and a half page memo, it doesn't really back that up. In fact, it undermines some of the central points. I mean, it says, for instance, that there was other intelligence beyond the dossier, beyond the information that came from Christopher Steele, the British MI-6 agent who prepared it, that was used to get those warrants.

It also says, for instance, that Christopher Steele had provided previously credible information to the FBI on other investigations.

Let me tell you, when you do a FISA application, I think one of the members of Congress tonight on our air said there were 50 pages in it. When a judge looks at it, the fact that Christopher Steele had provided credible information on previous cases would be very important for that consideration, for that judge. Probably more important than the fact it was paid for by political operatives. TAPPER: And the memo goes on to note at the end that there already

had been a counterintelligence investigation into the Trump campaign starting in July, not because of Carter Page but because of George Papadopoulos.

PEREZ: Right. And also importantly, what is left out from the memo -- we know from our own reporting, is that going all the way back to 2013 and 2014, Carter Page came on the radar of the FBI because of an investigation of a Russian spy ring in New York.

[22:05:05] He was interviewed. He was told then that the Russians were trying to essentially cultivate him to be a source--.

(CROSSTALK)

TAPPER: That's not in the memo.

PEREZ: But that is not in this memo.

TAPPER: It's a pretty obvious.

PEREZ: And so that is an important thing that would have been included in this application.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: What also isn't in the memo, by the way, is the reasons that the judge might renew a FISA application, which is you have to prove that it's working. You have to show, we've gotten a bunch of information here, and that is why we need to continue--.

PEREZ: Every 90 days.

TAPPER: Right.

BORGER: Every 90 days to continue to watch this person. So we don't know what the judge was actually looking at.

TAPPER: Shimon, Chairman Devin Nunes was on Fox News Earlier tonight. Here is what he says about the Steele dossier. Take a look.

(BEGIN VIDEO CLIP)

REP. DEVIN NUNES (R), CALIFORNIA: The dossier was presented to the court as if it was true. The court was not told that the democrats actually paid for this. And just step back for a moment.

This is not trying to go after some terrorist. This is about -- they opened -- the FBI opened a counterintelligence investigation into the Trump campaign in the summer of 2016. That's what happened.

And then they got a warrant on someone in the Trump campaign using opposition research paid for by the Democratic Party and the Hillary Clinton campaign. That's what this is about. It's wrong. And it should never be done.

(END VIDEO CLIP) TAPPER: What are your sources telling you about the accuracy of what he is saying?

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: Well, in terms of everything that's been sort of what he has been saying, you know, as Evan pointed out, there was other evidence in this FISA. We have done stories about that, how there was other information, other intelligence, human intelligence, human sources.

Remember the FBI was conducting its surveillance. They also have sources overseas. They know Carter Page at this point had been to Russia several times. They have sources in Russia that they are relying on for information.

All of that from all the reporting that we have done before even this memo came to light shows that they had other information. It wasn't just solely a case built on some dossier from a very respected MI-6 agent.

He had credibility with the FBI, with our intelligence agencies way before he even put this dossier together.

And also, you know, when the FBI went ahead and opened this investigation in July, we have done stories about this, there was -- they had seen contacts. There was a lot of contact between people within the Trump world, the Trump campaign, the Trump orbit and Russians. And that concerned them.

The intelligence officials at the CIA, DNI, James Clapper, these are all these intelligence officials who were concerned about this contact. So when you have a U.S. citizen in this country who is also having contact with Russians, it's reasonable for the FBI, certainly our sources have told us to go to a FISA court and say we need to -- we need to follow this guy. We need to see who he is talking to for more information because we are concerned about the national security.

TAPPER: So, Kara, one of the things that's very interesting for people who have been following the story since it began is the idea that the republicans are citing the spying on Carter Page as evidence that the FBI was biased against president Trump.

There's a number of reasons why that's interesting. One of them is Carter Page left the Trump campaign in September and this FISA warrant was it in October. The other one is, there used to be a time when people affiliated with president Trump said that they barely knew who Carter Page was. Take a look.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Carter Page is an individual who the president- elect does not know.

KELLYANNE CONWAY, WHITE HOUSE SENIOR ADVISER: He is not part of our national security or foreign policy briefings that we do now at all.

COREY LEWANDOWSKI, FORMER TRUMP CAMPAIGN MANAGER: To the best of my recollection, I don't know Carter Page. To the best of my knowledge Carter Page never had a Donald Trump.com e-mail address, had no formal role in the campaign that I'm aware of.

TRUMP: I don't think I have ever spoken to him. I don't think I've ever met him.

(END VIDEO CLIP)

TAPPER: But now all of a sudden, spying on Carter Page is trying to get President Trump. The same people are saying this. It's quite striking.

KARA SCANNELL, CNN JUSTICE REPORTER: It is. It's very interesting, because they're trying to cut it both ways. They're trying to use this to undermine the special counsel's investigation. But in reality, Carter Page, these FISA warrants on Carter Page were not -- they came after most of the campaign.

These reauthorizations were after the election. So it's hard for them to argue it both ways to say it's undermining the investigation and then also using it for that purpose when they are distancing themselves from him.

TAPPER: So, Evan, earlier today the Attorney General Jeff Sessions, who has recused himself from the Russia investigation because he gave misleading statements to the Senate about his contacts with Russians, he was speaking at an event about human trafficking.

[22:10:05] His deputy, Rod Rosenstein, is under fire, is beleaguered, is in the president's crosshairs. Take a look at what Jeff Sessions had to say about Rod Rosenstein.

(BEGIN VIDEO CLIP)

JEFF SESSIONS, UNITED STATES ATTORNEY GENERAL: Ron and Rachel are Harvard graduates. They are experienced lawyers. Rod has had 27 years in the department. Rachel had a number of years in the department previously. So they both represent the kind of quality in leadership that we want in the department.

(END VIDEO CLIP)

TAPPER: That's a very nice and off script praise of Rosenstein. And it comes at a time that it's pretty clear that the president is itching to fire him.

PEREZ: Yes. And look, I mean, I think the attorney general says the truth. I mean, that's exactly what he says about Rod Rosenstein I think is what you would hear from throughout the Justice Department. I mean, the guy is a career servant of the Justice Department, served under both republican and democratic administrations.

And you know, the president keeps attacking him like he is a partisan against him. Look, the bottom line is I think if you look at this memo, I think a lot of people going into the release of this were very concerned that Rod Rosenstein was not going to make it through the end of the week.

I think everybody inside the halls of the Justice Department certainly the people I talk to were very concerned that the president would use this to get rid of Rod Rosenstein.

I got to tell you, I mean, it's kind of a dud. It doesn't really deliver in all the buildup that republicans made it out to be. And frankly, also democrats.

Democrats built it up to be some kind of a grave threat to national security. I'm not sure it really does that. I think I can see why the FBI and the Justice Department didn't want it out. After all, this is still under seal by a federal judge. So you don't normally release these things.

But, you know, Sean Hannity kept saying that this memo would make Watergate look like a parking ticket. It looks more like a parking ticket.

TAPPER: Gloria, there was an expectation that this would be used -- this memo would be used as pretext by president Trump to fire Mueller or Rosenstein or possibly both. Now that it's out, was that political end achieved?

BORGER: Well, I think you heard the president today, he is not happy. He is itching to fire Rod Rosenstein. I think there are people around him -- our reporting shows -- that are trying to sort of strap him in his seat and say you cannot do this, you cannot do this.

And I think you heard White House spokesman tonight say he is not going to it. But I remember he wasn't supposed to fire James Comey and he went away for the weekend to Bedminster and he came back and by the way, he fired James Comey that Monday.

TAPPER: Right.

BORGER: So, anything can happen with this president. I think -- I think the feeling just looking at the president today and -- is that he believes that this memo did what he wanted it to do, which was to contaminate the Mueller investigation.

TAPPER: So, not pretext, just muddying?

BORGER: Muddying. So that if he is ever called to testify -- don't forget, we have an inspector general report coming out in March on a bunch of other stuff on the Hillary Clinton e-mails. All he wants to do is contaminate the investigation so if they ask him to testify, if Mueller says I want you to testify and he fights that, he can then say to the American public, instead of just no, he can say, why should I.

PEREZ: Right. It's rigged.

BORGER: Why should I?

TAPPER: Right. And there are a number of republican congressmen who are saying that tonight on Twitter. BORGER: Exactly.

TAPPER: Also we should point out, not Trey Gowdy the chairman of the government oversight committee who actually looked at the FISA application and not Speaker Paul Ryan.

Gloria, Evan, Simon, and Kara, thanks and all for being here.

Coming up next, republican Congressman Lee Zeldin he called for the public release of the Nunes memo. I will ask him what he thinks was achieved today and what it might need for the Russia investigation. Stay with us.

[22:15:00] (COMMERCIAL BREAK)

TAPPER: Breaking news. Fallout from the release of the controversial republican memo, the so-called Nunes memo which alleges that FBI and Justice Department officials abused their surveillance authority. President Trump approved its released over the objections of the FBI. Democrats are blasting the memo as an attempt by republicans and the president to undermine the Russia investigation.

Joining me now, Congressman Lee Zeldin, he's a New York republican member of the House Foreign Affairs Committee and also is a war veteran -- Iraq war veteran. Congressman Zeldin, always good to see you. Thanks for joining us.

REP. LEE ZELDIN (R), NEW YORK: Good to see you, Jake.

TAPPER: There are a lot of disputes going on about the memo. And so I just want to go over some of the questions that I have just so maybe you can help clear them up.

The Nunes memo released today says that Christopher Steele, the former British intelligence agent who wrote the dossier, they say he was terminated as an FBI source for leaking to the press.

But Glenn Simpson from Fusion GPS which hired Christopher Steele, Simpson testified before the House judiciary committee about Steele and said this.

Quote, "On October 31, the New York Times posted a story saying that the FBI is investigating Trump and found no connections to Russia. And you know, it was a real Halloween special. Sometimes they're after the FBI, I understand Chris severed his relationship with the FBI out of concern that he didn't know what was happening inside the FBI and there was a concern that the FBI was being manipulated for political ends by the Trump people and that we really didn't understand what was going on. So he stopped dealing with them."

So, Congressman Zeldin, did Glenn Simpson get it wrong when he spoke to the judiciary committee? Or is the Nunes memo wrong? Which happened first? Steele left the FBI or the FBI got rid of him?

ZELDIN: The FBI got rid of Steele. As a matter of fact, I'm sure that Steele, if you wanted to leave on his own terms, would have wanted to get paid the money he was owed by the FBI. But he was terminated and never received that payment for what he was offered.

And the other issue with it is that, it was known by the DOJ and FBI way before he was actually terminated that he was a compromised a bad source. You reference the Yahoo where they tell the FISA court that the -- that Steele was not a direct source to Yahoo when it turns out in fact he was.

[22:20:00] Talking to Yahoo and talking other media outlets, which is why the reason why the FBI and the DOJ choose to terminate Steele and that's why he doesn't receive that payment.

TAPPER: So, I want you to take a listen to what Devin Nunes, the chairman of the House intelligence committee said on Fox News tonight.

(BEGIN VIDEO CLIP)

NUNES: I don't believe that somebody like Mr. Page should be a target of the FBI.

(END VIDEO CLIP)

TAPPER: Now I know you are aware of this. But Carter Page had previously been a target of the FBI. He had been surveilled in 2013 and 2014, suspected of being swept up by a Russian agent.

So, I'm wondering if it's not possible that there are other reasons besides the dossier that would prompt the FBI to want to keep an eye on him given that they already had.

ZELDIN: Well, it should also be noted though, that the FBI and Carter Page develop a cooperative relationship with each other when that outreach is made to Carter Page where they are working together for a period of time.

Fast forward to the fall of 2016, that Carter Page who is a United States citizen, ends up becoming the target of a secret warrant from a secret court. And the way that that warrant is obtained is that you are using this unverified, unconfirmed salacious dossier targeting then-candidate Donald Trump, paid for by the Democratic National Committee used by a bad, compromised source as identified by--.

(CROSSTALK)

TAPPER: Wait, what do you mean the DOJ and FBI?

ZELDIN: The dossier.

TAPPER: The dossier was targeting Donald Trump? Ok.

ZELDIN: I'm saying--.

TAPPER: Correct. OK. I'm sorry. I misunderstood.

ZELDIN: So you are using that -- yes, you are using that dossier in order to go to this secret court to obtain the secret warrant against this United States citizen. But going all the way back to the beginning of time, it's just

important to note that there was a -- there was cooperation that ended up developing between the Justice Department and Carter Page directly.

TAPPER: Do you think that this memo, the Nunes memo, undermines the Mueller investigation? Do you think as some of your colleagues have tweeted this evening that the whole thing should now be scrapped?

ZELDIN: I believe that the best course of action on the Mueller investigation -- I have said this the entire time -- is for it to come to its natural conclusion by cooperating with the special counsel, the White House has provided tens of thousands of documents.

There have been a lot of different depositions that have taken place. The best case scenario I believe is not to have an investigation that goes on for many years. Just to help bring it to its speedy conclusion as naturally and as effectively as possible. That's the best case scenario.

TAPPER: There's a lot of speculation right now, some of it fed by President Trump's remarks earlier today, about whether or not he is going to fire the deputy attorney general Rod Rosenstein, who is listed in the Nunes memo as one of the individuals who approved of one of the Carter Page FISA warrants and then also has general supervision over the Mueller investigation.

Do you think President Trump should fire the Deputy Attorney General Rod Rosenstein?

ZELDIN: No. From everything I'm hearing he is not going to. What I think needs to happen is that there are members of Congress who have some follow-up questions to Mr. Rosenstein as it relates to this FISA abuse that took place.

There are questions that we have specifically. My biggest concern with this entire issue is specifically as it relates to FISA abuse. Because it's an awesome, powerful tool to make sure that it's never getting weaponized in any form or fashion.

So the process of obtaining a FISA warrant, which from everything that I've heard is almost always granted when you get to those judges for the application, the process has as much integrity as possible protecting it and also that there's a paper trail, a record, a thorough record so that if you have questions after the fact it's not that hard to put these pieces together.

TAPPER: Congressman Lee Zeldin of New York, thank you so much for your time, sir. Always good to see you.

ZELDIN: Thank you, Jake.

TAPPER: Democrats on the House judiciary committee issuing a scathing statement saying that President Trump has made republicans in Congress, quote, "accessories to his continuing obstruction of justice."

One of the democrats behind that rather jarring statement joins me next. Stay with us.

[22:25:00] (COMMERCIAL BREAK)

TAPPER: Breaking news. Washington roiled by the release of the controversial Nunes memo which alleges abuse by Justice Department officials in the Russia investigation. Democrats slamming the memo as inaccurate and misleading in an attempt to undermine the investigation by special counsel Robert Mueller.

Joining me now to discuss is Congressman David Cicilline. He's a Rhode Island democrat. Congressman, thanks so much for joining us.

REP. DAVID CICILLINE (D), RHODE ISLAND: My pleasure.

TAPPER: Tonight the House judiciary committee which you are a member release a statement saying this, quote, "With the release of the Nunes talking points the deliberately misleading document that politicizes and distorts classified information in order to discredit our intelligence and law enforcement agencies, President Trump has successfully added the republican majority in Congress as accessories to his continuing obstruction of justice."

Congressman Cicilline, is your committee really accusing the republican majority in Congress of being accessories in a crime?

CICILLINE: I think there's no other way to say it than the republicans in our committee and the republicans on the intelligence committee who have been part of this have been part of a very disappointing set of actions that is intending to undermine an ongoing investigation.

[22:30:03] These are individuals we have been pleading with on the judiciary committee to give us a hearing on many of these important issues that we have on oversight responsibly for. But instead, Devin Nunes, now remember, Devin Nunes was removed from leading the investigation because he was so partisan.

You remember the charade in the middle of the night. He purports to draft a memorandum that purports to be a summary of classified documents he has never even read. The Trump Justice Department and the Trump FBI leadership says is misleading, you know, has major omissions, designed again to undermine the investigation to really I think set the predicate for the firing of Rosenstein or Robert Mueller.

This has been -- the republicans now they are assisting this White House who have done everything they can -- the president in particular -- to stop the investigation, to prevent the American people from getting the truth.

And you know, we haven't heard anything from our republican colleagues about the collusion between the Trump campaign and the Russians, about the ongoing obstruction of justice.

But today they complain in a very misleading, lots of omissions.

TAPPER: Right.

CICILLINE: Then object to the release of the democratic memorandum which really sets the record set and then claim they are doing it for transparency. The American people see right through this. This is an effort to stop this investigation.

(CROSSTALK)

TAPPER: I hear what you are saying. But I'm just wondering about the statement that the judiciary committee gave. Are you actually accusing republicans of being accessories to a crime? Do you mean that more hyperbolically in a political sense?

CICILLINE: No, I think they are being accessories to this ongoing effort to obstruct justice and interfere with this investigation.

TAPPER: But that's a crime.

CICILLINE: Well, there's no other way -- there's no other way -- look, there's no other way to explain the creation of this memorandum which is misleading, which has gross omissions, which is false in many ways.

Adam Schiff who read the underlying documents -- and I read both memorandums. I hope the democratic memorandum will come out which will make this all very clear. But this is very disturbing behavior to have republicans in Congress trying to protect this president, circle the wagons and do everything they can to impede, slow or ultimately stop this investigation.

They've done no oversight. And now they are really doing the president's bidding in an effort to undermine the Department of Justice, the FBI and the leaders of this investigation. And this is very, very alarming. I think everyone should be concerned about it.

Let's not forget, we are investigating Russian interference in our elections. The conclusion of our intelligence agencies.

TAPPER: Right.

CICILLINE: Lots of information about collusion and contacts between the Trump campaign and the Russians. This is the very heart and soul of our democracy.

TAPPER: So.

CICILLINE: And what the republicans should be doing is getting out of the way, making sure Mr. Mueller is protected. We should be passing the bill so that he can be protected from being fired. Making sure they have the resources they need.

But they are actively interfering with the ongoing investigation, trying to undermine the investigators.

TAPPER: OK.

CICILLINE: And whether you think that's a crime or not, it's certainly not appropriate conduct.

TAPPER: OK. One of the things that we were told by democrats before the release of the memo was that there were national security issues at stake, that the sources and methods would be compromised with the release of this memo.

Have you seen any evidence since the memo was released that national security is actually being threatened because of the release of this memo? And have you seen any evidence of sources and methods being exposed by the release of this memo?

CICILLINE: Well, I don't think we know that yet. But that was the conclusion of the FBI. There was a letter from Steven Boyd that made that assertion. I think that was the department's position. It was the Department of Justice and the FBI's position that the intelligence experts and our law enforcement personal, I think we have to do everything we can to protect sources and methods.

They were deeply concerned about that and objected. Remember, these are Trump appointees who objected to the release for those reasons. I think we have to defer to them on that. Hopefully, there will be no harm to our national security or to any of our intelligence gathering operatives.

That was obviously a concern to the intelligence committee as well as the Department of Justice. As I said, the president's own leadership made that claim but despite that the republicans voted and the president agreed to release this. Because the measure for them is that it will help the president.

Does it somehow protect the president from being held accountable and from this investigation proceeding? And sadly, rather than assessing what's in our national security interest or how do we protect the men and women doing this very dangerous work at the FBI, instead the real measure is, is it good for the president? Does it protect him at all cost? And I think that's a terribly sad state of affairs.

TAPPER: All right. Congressman, thank you so much for your time. We really appreciate it.

When we come back, the Nunes memo isn't giving a full picture of what went on with the surveillance of Carter Page. Our experts will break it down, we'll bring you some of the missing context, next. Stay with us.

[22:35:00] (COMMERCIAL BREAK)

TAPPER: More memos, more problems. Congressman Devin Nunes is hinting there could be more memos to come. In the wake of the partisan memo from the republicans on the House intelligence committee, Nunes says, tonight that the investigation is ongoing. That is democrats charge that the memo released today is misleading and omits key facts.

Joining us now, Shawn Turner, CNN national security analyst, Laura Coates, CNN legal analyst and former federal prosecutor, and Walter Shaub, a CNN contributor and former director of the Office of Government Ethics under Presidents Obama and Trump. Walter, let me start with you. You called this a memo dud. Why?

WALTER SHAUB, CNN CONTRIBUTOR: Well, I don't think there was anything in there that we haven't been hearing as party talking points for the past several weeks. There's nothing in there that contradicts the idea that it was Papadopoulos talking to an Australian diplomat that triggered all of this.

TAPPER: back in July 2016?

SHAUB: That's right.

TAPPER: That's actually in the memo.

SHAUB: Right. It is. And of course, Carter Page had been under investigation for long before any of this started as well or at least under surveillance.

[22:39:56] And so, you know, we had been promised a bombshell that was going to make Watergate look like a parking ticket. But there really wasn't anything in there along those lines. When I reached the final page, I kept thinking maybe I hadn't printed out all of the pages.

TAPPER: Laura, you said there's context missing. Give us some examples.

LAURA COATES, CNN LEGAL ANALYST: Well, they fundamentally are undermining an argument for this core reason. They are saying that you have to discredit any investigation if there's a material omission of fact that would mislead the ultimate person to say, this is not a good decision to make.

What exactly what it does. It doesn't -- it leaves out whether or not there was anything else, anything at all that would be considered by an article three judge over a course of--.

(CROSSTALK)

TAPPER: That's a FISA court.

COATES: -- of a FISA court judge over the course of probably several months to a years' long investigation of Carter Page. Are you telling me the American people on Nunes, that we're to believe that this judge said, a Yahoo news article was sufficient and a dossier is all that was used?

The material omissions of fact are everything. What else was used to support and substantiate? Now it may very well be that there are lapses in judgment or there are huge areas that were not investigated or vetted. But that would belie the entire process of going through a FISA court and a FISA warrant.

It's got to be a full investigation. It's not based on one or two documents but the compilation of both context and vetted factual information and a lot of accurate facts that are there.

So to suggest that somehow we should discredit one organization or agency or investigation because they mislead by leaving key things out, doesn't that tell me I should do the same thing with this memo? I mean, we were promised a kraken and out pops a minnow.

TAPPER: So that's a philosophical argument you're posing.

COATES: Yes.

TAPPER: Shawn, the republicans are saying that the FISA memo -- the FISA warrant against carter Page was obtained using essentially just this dossier in a Yahoo news story by Mike Isikoff that talked about Carter Page's ties to Russia and the fact that he had been under investigation, et cetera. Is that possible?

SHAWN TURNER, CNN NATIONAL SECURITY ANALYST: Yes. This is not a partisan statement. It is impossible that the dossier alone could have been used as the justification for getting--.

(CROSSTALK)

TAPPER: The dossier with the Yahoo news story.

TURNER: Even with the yahoo news story. Because you have to understand that the bar for getting a FISA warrant is extremely high. And the reason that most FISA warrants are granted is because the FBI and the intelligence community they know how high that bar is.

And when they go to the FISC, the Foreign Intelligence Surveillance Court, they present a wealth of information.

It is the case that you must have multiple sources of information in order to get that warrant granted. And those sources of information necessarily in some cases must be from U.S. intelligence. The process is very complex and it's very detailed.

And this puts the FBI in a tough spot. Because if, as the FBI said that there are material omissions of fact from this memo, if that's the case, then the FBI necessarily has to let those material omissions of fact, those inaccuracies hang out there.

Because the application is classified. And it's going to remain classified in order to correct them, you have to provide all of this evidence that shows how they got this warrant.

And for the FBI do that, they would necessarily need to go to the president and ask the president to approve the declassification of this application, which would basically, you know, completely discredit the memo.

TAPPER: Walter, in the memo Nunes claims that the dossier written by the former British inteligence agent Christopher Steele is directly what led to the warrant as we're just discussing with Shawn.

Here is what the memo says. "Deputy Director McCabe testified before the committee in December 2017 that no surveillance warrant would have been sought from the FISA court without the Steele dossier information." Shawn saying that that's impossible. you said it's just impossible. But there have been abuses of -- the FBI has abused things in the past the intelligence agencies. We should note that most intelligence agents, most FNI agents are honorable men and women who do the right thing that put their lives in the line. But there have been abuses here and there. Is it not possible this is just something that should be looked at a little bit more?

SHAUB: Well, you have to keep in mind the context here. We've got other members of Congress and the minority who said that mischaracterizes what he testified to.

TAPPER: Andrew McCabe?

SHAUB: Yes. And we have the people releasing this memo voting not to release the competing memo by the other side. And so, it doesn't really smack of an interest in transparency. They also recently voted on a number of issues related to FISA and other national security issues.

And over the years, there hasn't been a consistent concern about abuses by the FBI or the DOJ. And so, it's very important that overall we look at issues to make sure that security apparatus aren't misused to spy on individual citizens.

But this doesn't seem like that. This is coming in the context of what's clearly a partisan attack on an ongoing investigation.

TURNER: Jake, can I just -- to add, we have to think about what it would have taken for this to be a legitimate abuse of power.

[22:45:01] In order for this to be a legitimate abuse of power, you would have need the director of the FBI, the deputy director of the FBI, as well as the lawyers who review FISA applications and of this judge to all have been deceived and to think that this dossier was, you know, was enough evidence.

Or you would have needed a conspiracy on the part of all of those individuals to say -- to stand against President Trump and to do that by surveilling Carter Page.

TAPPER: Yes.

COATES: And let's be clear. The FBI has had a history of undermining civil liberties. I mean, just Google Hoover and Martin Luther King, Jr. and you will find an entire conspiracy that lasted 12 years.

SHAUB: Right.

COATES: However, you are right about this sounding like a pre-textual reason. Because think about it. We're talking about for a FISA court, for a FISA renewal of an application if the warrants are renewed, every 90 days, they had to show that the rubber met the road. They didn't just have to have hypothesis of what they might find, they had to show what actually they found.

(CROSSTALK)

TAPPER: But he was never charged.

COATES: And he has to cover it. No, that's the requirement. The threshold is that there's some basis to continue having this surveillance of this person. You are having some fruitful result of your investigation and some need go forward based on probable cause.

And so, this was renewed not just once but more than once which means that it's not simply one document in an isolation in a vacuum. The deception that you speak of, Shawn, would have to take place over multiple different courts, multiple judges who are looking at it. And I just don't feel as though they would have been hoodwinked by this at all.

TAPPER: And we should not that all of the FISA judges have been appointed by Chief Justice John Roberts. Not exactly a flaming liberal Hillary Clinton supporter.

Thanks one and all for being here. We appreciate it.

FBI Director Christopher Wray addressing the bureau today telling agents to stay focused on their work, stay focus on their job. But what about his job? Wray had pleaded with the White House not to release the memo. Well, they didn't listen. So what does the FBI director do now? Stay with us.

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TAPPER: FBI Director Christopher Wray is trying to bolster morale following a tumultuous few days. The president's hand-picked director telling the rank and file tonight that the release of the Nunes memo is unsettling. That after he had strongly urged the White House to keep it classified, saying he had grave concerns, Wray says he remains inspired by the work the FBI does, adding that actions speak louder than words.

Joining me now Evan McMullin, he's a former CIA officer and an independent presidential candidate in 2016. Also Jim Trusty, a former chief at the organized crime division at the Justice Department.

Evan, the memo was released today after the strenuous objections of many in the intelligence community. Most publicly, the FBI director Christopher Wray. So, what do you think he should do now, should he resign?

EVAN MCMULLIN, FORMER CIA OPERATIVE: Well, I'll leave that up to him. I mean, he draw -- he draw a very clear line in opposition to the release of the memo. I think that it -- he has demonstrated some independence though. And I think of course that's very valuable.

I hope he continues on at the bureau and continuous to be an independent voice. That's critical.

But let me say, Jake, something that's happening here is that we've got two processes that -- that are separate. We have this political, this opposition research situation, political campaign develops opposition research that's a part of the process.

And then we've got -- we've got an intelligence process, a national process which is the FISA court process. Usually those things are never are not combined. It's unusual for them to be combined. But in this situation they have become combined. And there is natural sort of concern over that. I think that's reasonable.

TAPPER: So you understand why people would be concerned about bringing opposition research to a FISA court.

MCMULLIN: I -- it's -- it's an unusual thing. And I understand why some Americans might say, well, wait a second, is this the right thing? And this provides an opportunity for republicans who are aligned with the president to say hey, this is abuse of power. And I think it's wrong.

But I think the point that I'm trying to make here is just that, it's important for us to remember why these two things have come together. They've come together because we had a president and a campaign that was reasonably suspected of collaborating with a foreign government trying to influence our elections.

That's what brought those two things together. Not -- not the Justice Department or the FBI acting inappropriately. And I just -- that's -- I think we have to make that clear.

TAPPER: You're saying President Trump is the one who brought politics and surveillance together.

MCMULLIN: That's right.

TAPPER: I hear you. Jim, I want to ask you. You know Rod Rosenstein, the deputy attorney general, you worked with him at the Justice Department. The memo mentioned him as having been one of the people to sign off on one of the FISA warrants against Carter Page.

All indications are that President Trump is itching for Rosenstein to leave. If he fires him or not. What counsel would you give him tonight?

JIM TRUSTY, FORMER CHIEF, JUSTICE DEPARTMENT ORGANIZED CRIME DIVISION: Rod?

TAPPER: Yes, not the president, Rod Rosenstein.

TRUSTY: Because that would be a tougher job.

TAPPER: Yes. Rod Rosenstein.

TRUSTY: Look, I think Rod is a very principled and objective guy. I've known him for a long time. I think he knows what the job should be and he excels at it. I also think he just doesn't get distracted by the politics of the moment.

I mean, there is a lot more to dig into this whole situation. I don't think anybody should stop at one memo and feel that they've answered all the questions around FBI abuse, around omissions, what it means for court proceedings. I mean, there is a million questions.

But on Rod's mind I think he is probably just doing his job, he may have all sorts of internal communication with Mueller that we don't know about in terms of where this investigation has been and where it's going. But I just don't think he is the type of person that crumbles under pressure or any concern about the future.

TAPPER: Evan, you tweeted this out today. "I know and respect some of the House republicans on the intelligence committee which is why it's so disappointing that they would intentionally mislead the public on a national security matter while aiding the president's ongoing purge of senior law enforcement leaders." If that's what they're doing, why do you think they're doing it?

MCMULLIN: I think they're doing that because -- there are different reasons for all of them. Some of them are in vulnerable positions and depend on leadership money to compete in their districts. That's part of it.

[22:55:02] Some of them don't want to fall out of the good graces of the chairman, of Devin Nunes. If they want to pass legislation through the committee they depend on the chairman to allow that to happen.

And if you can't pass legislation then you start to run into even problems getting re-elected. So there are a lot of serious pressures that come on members of Congress when they don't toe the party line. But this is such an important issue.

You know, they really are misleading with the memo. You know, I read the memo a few times. It does cherry pick information out of what would be a normal FISA request.

And there are clues about that in the memo. They talk about the dossier being essential, an essential part to the memo, suggesting that there are other parts.

TAPPER: There are other parts exactly.

MCMULLIN: Yes, things like that. It's a real disservice and I'm disappointed by what I see there.

TAPPER: Jim, you have some concerns about things that you read in the memo.

TRUSTY: Well, look, I mean, Jake, all of us are speculating as to what the affidavit actually says. I'm kind of amazed to hear people pronouncing it a nuclear bomb or saying it's a dud or attributing it all to kind of a Game of Throne episode with Trump as the king.

I mean, the reality is there is ongoing investigation, there are criminal cases that are coming out of it. There is the unusual circumstance right now of what appears to be if you take the memo at its face, an exclusion of material evidence by an FBI agent possibly with other people in higher positions knowing it.

TAPPER: By not including the information that this was funded by democrats.

TRUSTY: Well, not just that that there is issues of credibility. I mean, every affidavit whether it's for wiretap, search warrant, arrest warrant. You're establishing as the affiant that there is something credible about this information.

And so, if there is a whole bunch of sources, that's great news for that aspect. If there is five different people that say we need to look at Carter Page and here is why, that's great. If it is literally what the chairman have said that it's essentially one person and then shopping their own story to the media that's very unusual and troubling.

(CROSSTALK)

MCMULLIN: The media part I never saw in 27 years.

TAPPER: We need to find out if that's true or not obviously.

TRUSTY: Right.

TAPPER: Evan McMullin and Jim Trusty, thank you so much. Be sure to tune in to CNN's state of the union this Sunday. My guests will be Senators Dick Durbin and Congressman Jim Himes and Brad -- Congressman Brad Wenstrup. It all starts Sunday at 9 a.m. Eastern and noon.

That's it for the special edition of the Lead. Jim Sciutto and Pamela Brown are next with the CNN special report the Russia investigation. Thanks for watching.

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