When Republican members of the House Intelligence Committee voted Monday to #ReleaseTheMemo, transforming their trending hashtag into a decision to release a controversial memo about the FBI’s investigation of Russian meddling in the 2016 election, they left President Donald Trump with the final decision. Since the memo contains information from classified FBI documents, the president has five days under the law to block public disclosure of the memo.
Trump’s chief of staff, John Kelly, suggested to Fox News Radio on Wednesday that the president has already decided to make the document public. “It’ll be released here pretty quick,” Kelly said.
In their bid to release the memo, however, Republicans and administration officials are revealing the hypocrisy of their efforts to keep classified information from becoming public when it is used in court, as opposed to when releasing such information might have a political upside.
Allowing for its release would throw red meat to Trump’s base, since the document purports to reveal how the FBI improperly used spying powers under the Foreign Intelligence Surveillance Act, or FISA, to investigate the Trump campaign’s connections to Russia and, specifically, Carter Page, a former foreign policy adviser to the Trump campaign. For weeks now, Republican politicians and right-wing media have hyped the memo. Fox News pundit Sean Hannity, an ardent Trump supporter, said the document “makes Watergate like stealing a Snickers bars,” though there’s no indication Hannity has read the document.
For weeks now, Republican politicians and right-wing media have hyped the memo.
The memo, written by staff members for House Intelligence Committee Chair Devin Nunes, R-Calif., reportedly accuses the FBI and the Justice Department of not providing sufficient information about Christopher Steele to the Foreign Intelligence Surveillance Court, a secret judicial body that oversees FISA.
A former British intelligence officer, Steele produced the infamous dossier on Trump that suggested Russian intelligence agents had compromised the president before he was elected. Several Trump campaign associates had met with Russian operatives, and Russian intelligence had information that could be used to blackmail Trump, the dossier claimed.
The dossier has its origins in a political endeavor known as opposition research — the collection of potentially damaging material about political rivals. Hillary Clinton’s presidential campaign and the Democratic National Committee, using a law firm as a third party, paid research firm Fusion GPS to gather information about Trump. Fusion GPS in turn hired Steele to produce his dossier. (Fusion GPS had first been hired by the Washington Free Beacon, a conservative news outlet, to conduct research on Trump during the Republican primaries.)
Republicans have suggested the information from Steele, who U.S. intelligence officials knew to have credible and well-placed sources in Russia, was used to support a FISA application to monitor Page’s communications. Under the laws that govern FISA, the FBI and the Justice Department must demonstrate to the secret court that the target of proposed FISA surveillance is acting on behalf of a foreign power.
In a remarkable public break with the White House, the FBI issued a statement Wednesday advocating that the House Intelligence Committee memo remain classified, describing the bureau’s “grave concerns about the material omissions of fact that fundamentally impact the memo’s accuracy.”
In federal courts, prosecutors and defense lawyers routinely argue before judges about evidence obtained through FISA surveillance. Prosecutors must notify defendants if they plan to use any evidence derived from these avenues. When notification occurs, defense lawyers will petition the court to review all FISA-related materials, including the application that was provided to the secret FISA court.
Releasing the memo would undermine an argument that Jeff Sessions made in federal court just six months ago.
The Justice Department has a standard response. Using a boilerplate letter that is modified slightly each time, prosecutors submit a declaration signed by the attorney general claiming that public review of FISA materials would harm U.S. national security by revealing the secret sources and methods used to conduct sensitive counterterrorism and counterintelligence investigations. Most recently, on July 24, 2017, Sessions signed such a declaration in a New York terrorism case, arguing that the disclosure of FISA information “could reasonably be expected to cause exceptionally grave damage to the national security of the United States.”
Federal judges have consistently sided with the Justice Department in these arguments, blocking defendants and their lawyers from accessing materials related to the FISA application.
The House Intelligence Committee memo, written from sources that would likely include classified documents related to the FISA application for surveillance of Page, would disclose the exact type of information that Sessions said six months ago would inflict “exceptionally grave damage” on national security.
The Justice Department did not respond to a request to comment on Sessions’s declaration about FISA information. Sessions has recused himself from the Justice Department’s investigation of Russian meddling in the 2016 election.
Because applications for FISA surveillance happen in secret proceedings, opportunities exist for abuse. In November, The Intercept reported on how the FBI used information from the National Security Agency’s mass surveillance programs to spy on terrorism suspects. To hide the use of the NSA’s controversial mass surveillance programs, which are authorized through an amendment to the FISA law known as Section 702, the FBI then re-obtains information through traditional FISA powers in a process called “parallel construction.” When defendants are brought into court, the Justice Department notifies them only that traditional FISA surveillance powers were used — not Section 702 powers.
Recent events suggest that the House Intelligence Committee memo is more about creating a political smokescreen than exposing FBI abuses of FISA: Nunes, whose staff wrote the controversial House Intelligence Committee memo, voted for the bill that, in January, reauthorized mass surveillance powers under Section 702 of FISA.