A controversial memo authored by Republican House Intelligence Committee staff could be released Friday with the White House’s approval despite public complaints from the FBI that the document is misleading and inaccurate.
Republicans say the four-page memo reveals abuses of surveillance laws by FBI officials intent on undermining Donald Trump’s campaign and later his presidency, but Democrats claim the document is willfully dishonest and they have produced their own 10-page memo rebutting it. The committee has voted to make the GOP memo’s public once the White House signs off on it, but the Democratic memo is not yet being considered for release.
Amid a fervent GOP campaign to #releasethememo, FBI Director Christopher Wray and Assistant Attorney General Rod Rosenstein have reportedly pressed President Trump to block its disclosure. According to CNN, the president is committed to making it public in the belief that it will help discredit special counsel Robert Mueller’s ongoing investigation of Russian interference in the 2016 election.
The FBI took the unexpected step Wednesday of making a public statement directly opposing the president’s position on the memo and asserting that a document the White House wants a released to the American people is fundamentally flawed.
“The FBI was provided a limited opportunity to review this memo the day before the committee voted to release it,” the statement said. “As expressed during our initial review, we have grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.”
BREAKING: Discovered late tonight that Chairman Nunes made material changes to the memo he sent to White House – changes not approved by the Committee. White House therefore reviewing a document the Committee has not approved for release. pic.twitter.com/llhQK9L7l6— Adam Schiff (@RepAdamSchiff) February 1, 2018
Republican House Intelligence Committee Chairman Devin Nunes, R-Calif., fired back that the FBI’s complaints are “spurious” and the DOJ was too slow in providing documents to investigators.
“It’s clear that top officials used unverified information in a court document to fuel a counterintelligence investigation during an American political campaign,” he said in a statement.
The memo reportedly alleges that the FBI used information from an unverified dossier of information compiled in part for Hillary Clinton’s presidential campaign to justify a surveillance warrant on one-time Trump foreign policy adviser Carter Page. FBI agents purportedly failed to make the document’s political provenance clear to a FISA judge.
CNN reported Thursday that the White House likely will not seek any additional redactions to the memo and will send it back to the House Intelligence Committee to be released as early as Friday. Democrats have alleged five material changes have been made to the memo since they first voted on it, but Republicans insist the changes were minor and do not necessitate another review.
House Minority Leader Nancy Pelosi and Senate Minority Leader Chuck Schumer both lobbied House Speaker Paul Ryan to remove Nunes from the committee Thursday. The California congressman and former Trump transition team member had recused himself from the committee’s Russia probe last year amid doubts about his independence from the White House, but an ethics investigation of him was later closed.
Nunes has not given a definitive answer on whether anyone at the White House helped draft this memo, but Ryan supports its release to help “cleanse” the FBI.
Rep. Tom Garrett, R-Va., defended the memo Wednesday as “fact-laden” and alarming.
“If we learn that there is evidence that the levers of power were leveraged against private citizens of the United States of America, that the federal government was weaponized for political ends, that should be the thing that’s troubling to all Americans of any political affiliation,” he said.
Many questions remain unanswered about the alleged misuse of FISA powers, and it is unlikely a four-page memo will answer them. Page has been on the FBI’s radar for years and reports have indicated there was additional evidence supporting the warrant beyond the few entries about him in the dossier produced by former British intelligence officer Christopher Steele for a firm working with Clinton and the Democratic National Committee.
Allies of the president have zeroed in on the dossier to cast doubt on the entire investigation of possible ties between Trump’s campaign and Russia, which is now in the hands of special counsel Mueller. The New York Times reported the probe was actually spurred by contacts between another Trump adviser and Russians, and the Steele dossier merely corroborated proof the FBI already had.
John Iannarelli, a retired FBI agent who once served as the bureau’s national spokesman, said it is unusual for the FBI to issue the public statement it did Wednesday, but the circumstances surrounding this memo are highly unusual as well. FBI officials may believe the memo is inaccurate, that the public will receive an inaccurate impression from it, or that it could compromise future investigations.
“There could be a myriad of reasons why the FBI wants to protect this memo and it may be nothing nefarious like a cover-up,” he said.
Unlike criminal case warrants that are typically unsealed by the time the suspect is tried and imprisoned, FISA warrants include information on methods that could be used by other subjects to evade detection if they are publicized.
“That makes the public a lot less safe,” Iannarelli said.
According to David Gomez, a former FBI agent who spent nearly 30 years with the bureau, FISA warrant applications are typically at least 60 to 100 pages long. Based on what is publicly known, he doubts the dossier’s claims could serve as primary justification for a warrant.
“Meeting with Russians, traveling to Moscow, all of that is circumstantial evidence that can lead to a conclusion that he’s acting as an agent of a foreign power, but it’s not conclusive,” he said.
Though Nunes has portrayed the FBI’s complaints as an attempt to bury its wrongdoing, Gomez said revealing details of a FISA application could tip off foreign agents about who is being surveilled and how.
“They may be trying to protect any other FISAs that exist on other U.S. persons or foreign nationals,” he said.
The challenge for Democrats and law enforcement officials is that the only way to counter some Republican allegations would be to reveal the underlying intelligence from which Nunes’ staff allegedly cherry-picked the most damning details. The Democratic memo will help push back, but members will not be able to discuss its contents until well after the accusations in the GOP memo flood the airwaves and social media.
“Out of 100 pages you’re going to take four pages of facts and say it’s bad…,” Gomez said. “In order for the DOJ to defend against that memo, they would have to reveal classified information as well.”
At a contentious House Intelligence Committee meeting Monday, Democrats claimed the refusal to allow the two memos to be released simultaneously exposes the raw partisan motivation behind the Republicans’ actions.
“All this smacks of is deflection, distraction, and quite honestly, acting like you are trying to help the White House address this investigation instead of trying to find out what happened,” said Rep. Mike Quigley, D-Ill.
“We cannot count on this president to put the national interest over personal interest,” Ranking Democrat Adam Schiff, D-Calif., said. “I would hope that we could count on this committee, though, to put the national interest over anything else.”
Rep. Peter King, R-N.Y., argued that the abuses alleged in the GOP memo “go to the core of our democracy” and releasing it is in the national interest.
“There are moments in our history when full transparency is required so that all Americans can understand what their government has done,” he said.
Republicans asserted that the Democratic memo is being subject to the same disclosure procedures as theirs was, but Schiff mocked their insistence that they just want transparency.
“Apparently full transparency doesn’t mean full transparency,” he said. “It means release the majority view first and delay the minority view.”
When majority and minority members of a congressional committee have come to different conclusions after an investigation in the past, the minority is typically given a chance to make its case, according to Steve Vladeck, a professor of law at the University of Texas School of Law. One example he cited was the 2014 Senate Intelligence Committee report on CIA interrogation methods.
“When the then-Democratic majority released the executive summary of that report, it released it alongside minority statements from the Republicans and statements from the relevant agencies,” he said.
The FBI director now finds himself at odds with a president who appointed him, with limited ability to respond publicly to allegations of impropriety and the White House apparently dismissing his stated concerns about the accuracy of the memo. CNN reports that some in the White House fear Wray will resign over the release of the document.
According to Vladeck, tensions between the FBI and the West Wing are not unheard of, but they rarely play out so publicly.
“It’s especially fraught in the current moment because the president appears committed to a narrative that undermines the FBI’s credibility,” he said, “and it’s rare for the president to undermine his own law enforcement agencies in this way.”
Rep. Garrett suggested some at the FBI and DOJ have undermined their own credibility in the last two years, and he cautioned against dismissing the memo as a partisan stunt.
“I’m even more afraid people will respond by saying, ‘Whatever, get Trump,’” he said. “You don’t need to like Trump, but you do need to like freedom. You do need to like a government that works within the constraints placed upon it by a citizenry that it’s designed in theory to serve.”
Though abuses of FISA powers have been uncovered in the past, experts agree it would be difficult to manipulate the system for political purposes.
“Where the abuses have happened in the 40-year history of FISA, it hasn’t been for partisan reasons,” Vladeck said.
FISA applications are nearly always approved, but that is because they are thoroughly vetted before they reach a judge’s desk.
“The government doesn’t usually go to the FISA court with flimsy evidence,” he said.
According to Gomez, the list of people who have to sign off on a FISA application once an agent prepares it is long, including local supervising agents, legal counsel, and officials at FBI headquarters and the DOJ, any of whom could send it back for revisions. A presumably neutral FISA court judge then makes the final decision.
“I think the safeguards exist in just the number of approvals that are needed for any application… You would have to compromise everybody in that approval process to have a conspiracy,” he said.
If the Steele dossier was in fact used to justify surveillance of Page, legal experts say that would not necessarily discredit it. In a Lawfare post, Orin Kerr, a professor at the University of Southern California Gould School of Law, outlined the history of cases involving “informant bias” in warrant applications and found plenty of precedent to believe the funding source for Steele’s research would not be relevant to a judge’s assessment of the FISA warrant.
I had many fights with Congressional Dems over the years on national security matters. But I never witnessed the type of reckless partisan behavior I am now seeing from Nunes and House Republicans. Absence of moral and ethical leadership in WH is fueling this government crisis. https://t.co/KEUrsgtqhp— John O. Brennan (@JohnBrennan) February 1, 2018
“In the abstract, even if one accepts the whole narrative, it’s not clear that a FISA warrant based solely upon the Steele dossier would have been invalid,” Vladeck said.
In Monday’s Intelligence Committee hearing, Rep. Jackie Speier, D-Calif., warned that Republicans were on a slippery slope that would inevitably lead to demands that the whole FISA warrant application be declassified, an unprecedented move that would be difficult to make without betraying intelligence sources and methods.
“We should be ashamed of ourselves,” she said. “This is a political act, pure and simple, and we all know it.”
According to Vladeck, that is exactly what will be needed for the public to discern the accuracy of the dueling memos.
“The only way there’s going to be any resolution here that is at all satisfying is if the public is allowed to see as much of the underlying FISA application as possible,” he said.