Greg Lance – Watkins
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Mr. Nunes, Republican of California, is the chief architect of this memo, though it was drafted by a Republican staff member, Kashyap Patel.
With backing from Speaker Paul D. Ryan, Mr. Nunes led Republicans on the House Intelligence Committee in a party-line vote rejecting the simultaneous release of the Democrats’ 10-page rebuttal memo, which they have portrayed as explaining inaccuracies and misleading omissions in this one.While House rules allow a rarely used procedure to make classified information public without executive branch approval, the White House does not acknowledge that Congress has legitimate authority to do so.
It remains unclear whether House Republicans or the White House will eventually let the Democratic rebuttal memo be released.This letter from Donald F. McGahn II, the White House counsel, says that the administration consulted with the office of Dan Coats, the director of national intelligence, and the Justice Department.
Notably, Mr. McGahn does not say either institution concurred that it was a good idea to make the memo public. In recent days, the F.B.I. has publicly expressed “grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy,” while Mr. Coats’s office has declined to comment.Mr. Boente and Mr. Rosenstein are both Trump administration officials — the general counsel of the F.B.I. and the deputy attorney general, respectively. Under Justice Department regulations, it is Mr. Rosenstein who appointed and oversees Robert S. Mueller III, the special counsel leading the Russia investigation. Mr. Rosenstein controls the scope of Mr. Mueller’s jurisdiction, can block him from taking steps like issuing indictments and is the only official who can fire him.
If Mr. Trump used the wiretapping of Mr. Page to justify removing Mr. Rosenstein, the president could install someone who might be more willing to constrain or end the investigation.In accusing the F.B.I. of omitting important information, this memo’s critics say the memo itself omits crucial context: other evidence that did not come from Mr. Steele, much of which remains classified. For example, it makes no note of the fact that Mr. Page attracted the F.B.I.’s interest in 2013, coming to believe that Russian spies were trying to recruit him. The F.B.I. obtained a FISA wiretap order then, as well, according to a person familiar with the matter.
The top Democrat on the House Intelligence Committee, Representative Adam B. Schiff of California, issued a statement, saying that “it is necessary to understand how the investigation began, what other information the F.B.I. had about Russia’s efforts to interfere with our election, and what the F.B.I. knew about Carter Page prior to making application to the court.”David Kris, a FISA expert and the former head of the Justice Department’s National Security Division during the Obama administration, called this the “money quote” in the memo. The impression created by that line, he said, is “potentially problematic, and worthy of further review.” However, he said, if the applications did disclose that Mr. Steele’s research was funded by people who were motivated to undermine Mr. Trump’s campaign — even if they did not specifically name the Democratic National Committee or the Clinton campaign — “then the FISA applications would be fine.”
This one of several “serious mischaracterizations,” Mr. Schiff’s statement said. “The majority suggests that the F.B.I. failed to alert the court as to Mr. Steele’s potential political motivations or the political motivations of those who hired him, but this is not accurate.”Mr. Schiff deemed this to be another of those “serious mischaracterizations,” saying that the article was not used to corroborate Mr. Steele. Mr. Kris, the FISA expert, said that it was “much more likely that they would include an article to show that the investigation had become public, and that the target therefore might take steps to destroy evidence or cover his tracks.”The court filing referenced here took place on May 18, 2017, long after the initial application and at least the first renewal application.The language used here on Mr. Steele’s relationship with the F.B.I. suggests that it was formal. But he never entered into any formal relationship from which he could be suspended or terminated, according to people familiar with their interactions.
— Matthew RosenbergMr. Steele took detailed notes of his conversation with the F.B.I. on Oct. 1, 2016. A person familiar with the notes says that they contain no evidence that the discussion addressed whether he was also talking to the news media.
— Matthew RosenbergMr. Ohr worked on counternarcotics investigations; there is no public evidence that played a role in the FISA application.Mr. Schiff’s statement portrays this line as mischaracterizing the context in which the application discussed Mr. Papadopoulos:
“The D.O.J. appropriately provided the court with a comprehensive explanation of Russia’s election interference, including evidence that Russian agents courted another Trump campaign foreign adviser, George Papadopoulos. As we know from Papadopoulos’ guilty plea, Russian agents disclosed to Papadopoulos their possession of stolen Clinton emails and interest in a relationship with the campaign. In claiming that there is ‘no evidence of any cooperation or conspiracy between Page and Papadopoulos,’ the majority deliberately misstates the reason why D.O.J. specifically explained Russia’s role in courting Papadopoulos and the context in which to evaluate Russian approaches to Page.”The memo here states as fact a theory pushed by conservative commentators that this text message is evidence of a conspiracy to prevent Mr. Trump from being elected.
According to a person familiar with the conversation, the text message referenced a debate inside the F.B.I. over how aggressively and publicly they should move on the Russia case. Some argued it was unlikely to be solved by Election Day and the chance of a Trump victory was low. Mr. Strzok argued the F.B.I. had an obligation to move quickly, making an analogy that even though the chance of dying young is low, buying insurance is still prudent. Mr. Strzok lost the argument and the F.B.I. kept the investigation a secret.
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Chairman, House Permanent Select Committee on Intelligence
United States Capitol
Washington, DC 20515
Dear Mr. Chairman:
On January 29, 2018, the House Permanent Select Committee on Intelligence (hereinafter “the Committee”) voted to disclose publicly a memorandum containing classified information provided to the Committee in connection with its oversight activities (the “Memorandum,” which is attached to this letter). As provided by clause 11(g) of Rule X of the House of Representatives, the Committee has forwarded this Memorandum to the President based on its determination that the release of the Memorandum would serve the public interest.
The Constitution vests the President with the authority to protect national security secrets from disclosure. As the Supreme Court has recognized, it is the President’s responsibility to classify, declassify, and control access to information bearing on our intelligence sources and methods and national defense. See, e.g., Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988). In order to facilitate appropriate congressional oversight, the Executive Branch may entrust classified information to the appropriate committees of Congress, as it has done in connection with the Committee’s oversight activities here. The Executive Branch does so on the assumption that the Committee will responsibly protect such classified information, consistent with the laws of the United States.
The Committee has now determined that the release of the Memorandum would be appropriate. The Executive Branch, across Administrations of both parties, has worked to accommodate congressional requests to declassify specific materials in the public interest.1 However, public release of classified information by unilateral action of the Legislative Branch is extremely rare and raises significant separation of powers concerns. Accordingly, the Committee’s request to release the Memorandum is interpreted as a request for declassification pursuant to the President’s authority.
The President understands that the protection of our national security represents his highest obligation. Accordingly, he has directed lawyers and national security staff to assess the declassification request, consistent with established standards governing the handling of classified information, including those under Section 3.1(d) of Executive Order 13526. Those standards permit declassification when the public interest in disclosure outweighs any need to protect the information. The White House review process also included input from the Office of the Director of National Intelligence and the Department of Justice. Consistent with this review and these standards, the President has determined that declassification of the Memorandum is Appropriate.
Based on this assessment and in light of the significant public interest in the memorandum, the President has authorized the declassification of the Memorandum. To be clear, the Memorandum reflects the judgments of its congressional authors. The President understands that oversight concerning matters related to the Memorandum may be continuing. Though the circumstances leading to the declassification through this process are extraordinary, the Executive Branch stands ready to work with Congress to accommodate oversight requests consistent with applicable standards and processes, including the need to protect intelligence sources and methods.
Declassified by order of the President — February 2, 2018
January 18, 2018
To: HPSCI Majority Members
From: HPSCI Majority Staff
Subject: Foreign Intelligence Surveillance Act Abuses at the Department of Justice and the Federal Bureau of Investigation
This memorandum provides Members an update on significant facts relating to the Committee’s ongoing investigation into the Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) and their use of the Foreign Intelligence Surveillance Act (FISA) during the 2016 presidential election cycle. Our findings, which are detailed below, 1) raise concerns with the legitimacy and legality of certain DOJ and FBI interactions with the Foreign Intelligence Surveillance Court (FISC), and 2) represent a troubling breakdown of legal processes established to protect the American people from abuses related to the FISA process.
On October 21, 2016, DOJ and FBI sought and received a FISA probable cause order (not under Title VII) authorizing electronic surveillance on Carter Page from the FISC. Page is a U.S. citizen who served as a volunteer advisor to the Trump presidential campaign. Consistent with requirements under FISA, the application had to be first certified by the Director or Deputy Director of the FBI. It then required the approval of the Attorney General, Deputy Attorney General (DAG), or the Senate-confirmed Assistant Attorney General for the National Security Division.
The FBI and DOJ obtained one initial FISA warrant targeting Carter Page and three FISA renewals from the FISC. As required by statute (50 U.S.C. §1805(d)(1)), a FISA order on an American citizen must be renewed by the FISC every 90 days and each renewal requires a separate finding of probable cause. Then-Director James Comey signed three FISA applications in question on behalf of the FBI, and Deputy Director Andrew McCabe signed one. Then-DAG Sally Yates, then-Acting DAG Dana Boente, and DAG Rod Rosenstein each signed one or more FISA applications on behalf of DOJ.
Due to the sensitive nature of foreign intelligence activity, FISA submissions (including renewals) before the FISC are classified. As such, the public’s confidence in the integrity of the FISA process depends on the court’s ability to hold the government to the highest standard particularly as it relates to surveillance of American citizens. However, the FISC’s rigor in protecting the rights of Americans, which is reinforced by 90-day renewals of surveillance orders, is necessarily dependent on the government’s production to the court of all material and relevant facts. This should include information potentially favorable to the target of the FISA application that is known by the government. In the case of Carter Page, the government had at least four independent opportunities before the FISC to accurately provide an accounting of the relevant facts. However, our findings indicate that, as described below, material and relevant information was omitted.
1) The “dossier” compiled by Christopher Steele (Steele dossier) on behalf of the Democratic National Committee (DNC) and the Hillary Clinton campaign formed an essential part of the Carter Page FISA application. Steele was a longtime FBI source who was paid over $160,000 by the DNC and Clinton campaign, via the law firm Perkins Coie and research firm Fusion GPS, to obtain derogatory information on Donald Trump’s ties to Russia.
a) Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior DOJ and FBI officials.
b) The initial FISA application notes Steele was working for a named U.S. person, but does not name Fusion GPS and principal Glenn Simpson, who was paid by a U.S. law firm (Perkins Coie) representing the DNC (even though it was known by DOJ at the time that political actors were involved with the Steele dossier). The application does not mention Steele was ultimately working on behalf of—and paid by—the DNC and Clinton campaign, or that the FBI had separately authorized payment to Steele for the same information.
2) The Carter Page FISA application also cited extensively a September 23, 2016, Yahoo News article by Michael Isikoff, which focuses on Page’s July 2016 trip to Moscow. This article does not corroborate the Steele dossier because it is derived from information leaked by Steele himself to Yahoo News. The Page FISA application incorrectly assesses that Steele did not directly provide information to Yahoo News.
Steele has admitted in British court filings that he met with Yahoo News—and several other outlets—in September 2016 at the direction of Fusion GPS. Perkins Coie was aware of Steele’s initial media contacts because they hosted at least one meeting in Washington D.C. in 2016 with Steele and Fusion GPS where this matter was discussed.
a) Steele was suspended and then terminated as an FBI source for what the FBI defines as the most serious of violations—an unauthorized disclosure to the media of his relationship with the FBI in an October 30, 2016, Mother Jones article by David Corn.
Steele should have been terminated for his previous undisclosed contacts with Yahoo and other outlets in September—before the Page application was submitted to the FISC in October—but Steele improperly concealed from and lied to the FBI about those contacts.
b) Steele’s numerous encounters with the media violated the cardinal rule of source handling—maintaining confidentiality—and demonstrated that Steele had become a less than reliable source for the FBI.
3) Before and after Steele was terminated as a source, he maintained contact with DOJ via then-Associate Deputy Attorney General Bruce Ohr, a senior DOJ official who worked closely with Deputy Attorneys General Yates and later Rosenstein. Shortly after the election, the FBI began interviewing Ohr, documenting his communications with Steele. For example, in September 2016, Steele admitted to Ohr his feelings against then-candidate Trump when Steele said he “was desperate that Donald Trump not get elected and was passionate about him not being president.” This clear evidence of Steele’s bias was recorded by Ohr at the time and subsequently in official FBI files—but not reflected in any of the Page FISA applications.
a) During this same time period, Ohr’s wife was employed by Fusion GPS to assist in the cultivation of opposition research on Trump. Ohr later provided the FBI with all of his wife’s opposition research, paid for by the DNC and Clinton campaign via Fusion GPS. The Ohrs’ relationship with Steele and Fusion GPS was inexplicably concealed from the FISC.
4) According to the head of the FBI’s counterintelligence division, Assistant Director Bill Priestap, corroboration of the Steele dossier was in its “infancy” at the time of the initial Page FISA application. After Steele was terminated, a source validation report conducted by an independent unit within FBI assessed Steele’s reporting as only minimally corroborated. Yet, in early January 2017, Director Comey briefed President-elect Trump on a summary of the Steele dossier, even though it was—according to his June 2017 testimony—“salacious and unverified.” While the FISA application relied on Steele’s past record of credible reporting on other unrelated matters, it ignored or concealed his anti-Trump financial and ideological motivations. Furthermore, Deputy Director McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.
5) The Page FISA application also mentions information regarding fellow Trump campaign advisor George Papadopoulos, but there is no evidence of any cooperation or conspiracy between Page and Papadopoulos.
The Papadopoulos information triggered the opening of an FBI counterintelligence investigation in late July 2016 by FBI agent Pete Strzok. Strzok was reassigned by the Special Counsel’s Office to FBI Human Resources for improper text messages with his mistress, FBI Attorney Lisa Page (no known relation to Carter Page), where they both demonstrated a clear bias against Trump and in favor of Clinton, whom Strzok had also investigated. The Strzok/Lisa Page texts also reflect extensive discussions about the investigation, orchestrating leaks to the media, and include a meeting with Deputy Director McCabe to discuss an “insurance” policy against President Trump’s election.
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