Donald Trump is refusing to release a document prepared by the Democrats on the House intelligence committee intended to refute Trump-backed allegations of surveillance abuse in the investigation of his ties to the Kremlin.
Days after committee Republicans went public with accusations of surveillance abuse by senior Justice Department and FBI officials, the committee voted unanimously on Monday to declassify a rebuttal from its Democrats charging that committee chairman and White House ally Devin Nunes, the architect of the surveillance-abuse narrative, materially misrepresented those investigating Donald Trump to discredit them.
That vote gave Trump a deadline of Saturday to allow or block the memo’s release, and Democrats on the panel spent Friday not knowing how the White House would treat a document that undermined a GOP narrative that Trump used to claim vindication in his year-long insistence that he is the victim of a conspiracy to undermine his presidency from within.
The White House counsel, Don McGahn, delivered the verdict in a letter to the committee Friday night – one that used two senior officials whom Democrats have been vociferously defending to block the release of a memo tacitly designed to aid them against Trump.
McGahn did not close the door on an ultimate release, and said Trump was “inclined to declassify” the Democratic memo. But his letter said Deputy Attorney General Rod Rosenstein and FBI Director Chris Wray had written a memo identifying passages in the 10-page Democratic memo that raised what the White House lawyer described as “concerns in light of longstanding principles regarding the protection of intelligence sources and methods, ongoing investigations, and other sensitive information.”
The White House and committee Republicans released the Nunes memo last week without any redactions, putting it in the rare position of confirming counterintelligence surveillance on a specific, recent and politically connected target. Republicans on the panel had warned that the Democratic counter-memo contained classified information.
Rosenstein and Wray’s letter was the first indication either had reservations about the Democratic memo. Their institutions had raised vociferous and public objections to the release of the Trump-backed Nunes memo, which Democrats had said was designed to discredit those investigating Trump – and particularly Rosenstein, who is the functional overseer of special prosecutor Robert Mueller.
Earlier on Friday, the FBI declined to comment when asked if it had concerns about the Democratic memo, which the committee’s top Democrat, Adam Schiff, unlike Nunes, had made available to the bureau and the Justice Department for review.
Schiff hit the White House for its different treatment of the two parties’ memos but held out hope that his memo would still be released.
“We will be reviewing the recommended redactions from DOJ and FBI, which these agencies shared with the White House, and look forward to conferring with the agencies to determine how we can properly inform the American people about the misleading attack on law enforcement by the GOP and address any concerns over sources and methods,” Schiff said in a statement.
Schiff has described his 10-page memo as something he’d have preferred not to have written.
As a groundswell to made public Nunes’ charges intensified on the right, looping from Congress to Fox News and back, Schiff said on January 24 that “regrettably, it has been necessary” to prepare a response, given what he called the Nunes’ memo’s “erroneous impression of the dedicated professionals at the FBI and DOJ.”
Schiff’s initiative reflects an uncomfortable alignment of forces for many involved and observing – a characteristic of the Trump era.
Much as the FBI brands itself as beyond politics, it has a highly conservative institutional culture, according to bureau veterans. At a minimum, it does not want to be involved in a partisan clash. Both it and the Justice Department are answerable to the Trump administration, whose appointees staff its senior ranks, making the acceptance of Democratic support politically perilous. Nor are many Democratic constituencies, some of whom have experienced actual FBI surveillance abuses, particularly incline to valorize the bureau.
But under siege from the right, the FBI and the Justice Department felt compelled to strike preemptive blows at Nunes’ memo. First, a Trump appointee at Justice called the memo’s release without FBI vetting “extraordinarily reckless” and said he was “unaware” of surveillance-related misconduct. More forcefully, in a rare public statement rebutting a Hill committee, the FBI charged the Nunes memo with “material omissions of fact that fundamentally impact the memo’s accuracy.”
The Nunes memo intimates that information from ex-British spy Christopher Steele’s dossier accusing Trump aides of extensive ties to the Kremlin formed the core of the October 2016 surveillance warrant on foreign-policy adviser Carter Page. It accuses senior officials, including Rosenstein, of concealing from the secret surveillance court that Steele’s financing came from Trump’s political foes. And it suggests that the Page surveillance was the heart of the initial FBI probe into Trump.
Yet without the Democratic rebuttal memo, problems emerged with Nunes’ narrative.
Nunes himself later conceded that the original surveillance submission to the court contained a footnote explaining that Democratic-aligned forces paid for it. Sources familiar with secret testimony from outgoing FBI Deputy Director Andrew McCabe said Nunes mischaracterized McCabe to say the Steele dossier was central to the Page surveillance. Even the memo itself quietly conceded, in its final paragraph, that information concerning a different aide, George Papadopoulos, “triggered the opening of an FBI counterintelligence investigation in late July 2016,” three months before the surveillance on Page. And Nunes himself has acknowledged that he has not even viewed the surveillance application his memo purports to summarize.
Additionally, Page had left the Trump campaign the month before the surveillance submission, making him an unlikely target for a secret FBI-DOJ anti-Trump agenda – and all the more so given Page’s years-long history of closeness to Russian spies.
“The Democratic response sets out the material facts that were necessary for the public to see that the FBI acted properly in seeking a [surveillance] warrant on Carter Page. After promising to treat the Democratic response in precisely the same way, the White House now seeks to have the Democratic memo sent back to committee and revised by the same Majority that produced the flawed Nunes document to begin with,” Schiff said Friday night.
Nunes, however, has glided past the discrepancies in his account. He speaks almost exclusively to sympathetic media outlets, dismissively charging news outlets pointing out problems with his memo of bias and pledging to move on to other government targets that he further accuses of unspecified misconduct in hunting Trump. One of them, ex-Obama administration State Department official Jonathan Winer, published a preemptive rebuttal to Nunes on Thursday night.
Almost two weeks ago, Democrats on the intelligence committee predicted Nunes’ play. All thirteen Republicans on the panel voted on January 29 to release Nunes’ memo and not Schiff’s.
“I understand the political stratagem,” Schiff said at that meeting. “You want your memo to be out there for a week and to have the public have only one version for a week so you can set the narrative. That makes this political exercise all the more transparent.”
Doing so “would be an indication that this is an exercise in pure politics, partisan politics, that the intent is to set a political agenda and also just to protect the White House and the president,” Rep. Joachin Castro of Texas added.
The underlying text over which the GOP and Democratic memos clash remains outside public view. No Foreign Intelligence Surveillance Act (FISA) warrant application for targeted surveillance has ever been disclosed in the 40 years since the FISA law passed.
But that might not last. The New York Times has requested the FISA Court break from all precedent and disclose the surveillance application on Page. The Times argues that Nunes has already confirmed the warrant was granted and the extraordinary public interest surrounding the application merits its unique release.
That request aligns the Times with Nunes, who has also requested the application’s disclosure.