White House release of the memo:
THE WHITE HOUSE
WASHINGTON
February 2, 2018
The Honorable Devin Nunes
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. 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.
Sincerely,
Donald F. McGahn II
Counsel to the President
cc: The Honorable Paul Ryan
Speaker of the House of
Representatives
The memo itself:
The Honorable Adam Schiff
Ranking Member, House Permanent
Select Committee on Intelligence
UNCLASSIFIED
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
Purpose
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.
Investigation Update
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.
UNCLASSIFIED
PROPERTY OF THE U.S. HOUSE OF
REPRESENTATIVES
The Steele Dossier: From Buzzfeed, Jan 10, 2017
