The Republicans and Democrats on the House intelligence committee have now released competing memos on how the FBI and Department of Justice obtained court approval for surveillance of Carter Page, a former adviser to Donald Trump’s presidential campaign.
The GOP memo, released Feb. 2, contends the FBI and Department of Justice abused the Foreign Intelligence Surveillance Act by omitting “material and relevant information” in its FISA application. The Republicans maintain that a series of reports compiled by former British intelligence officer Christopher Steele “formed an essential part of the Carter Page FISA application,” but the government’s application did not disclose that Hillary Clinton’s campaign and the Democratic National Committee paid for the so-called Steele dossier.
The Democrats responded with a memo, released Feb. 24, that contends the “FBI and DOJ officials did not ‘abuse’ the Foreign Intelligence Surveillance Act (FISA) process,” claiming that the DOJ “cited multiple sources to support the case for surveilling Page” and “made only narrow use” of information from Steele. It maintains that the court knew Steele was hired to conduct political opposition research.
On the day the Democratic memo was released, President Donald Trump tweeted that it proves the “FBI did not disclose who the clients were — the Clinton Campaign and the DNC” in its application to the FISA court. That’s misleading.
The Clinton campaign and the DNC were not mentioned in the FISA application, because of the DOJ’s “longstanding practice” of protecting the names of U.S. persons and organizations unless they are the subject of an investigation, the Democratic memo says. Even so, the application describes the so-called Steele dossier as paid opposition research that would be likely used to “discredit” Trump’s campaign.
The FISA application, dated Oct. 21, 2016, says a “U.S. Person” (Glenn Simpson, founder of Fusion GPS) told “source #1” (Steele) that a “U.S.-based law firm” (Perkins Coie) “had hired” Simpson “to conduct research regarding Candidate #1’s ties to Russia,” referring to Trump, according to the Democratic memo.
FISA application, Oct. 21, 2016: The identified U.S. person hired Source #1 to conduct this research. The identified U.S. Person never advised Source #1 as to the motivation behind the research into Candidate #1’s ties to Russia. The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate #1’s campaign.
Trump also claimed in a Feb. 24 interview on Fox News that the Democratic memo “really verifies the Nunes memo,” referring to the Republican memo named after Rep. Devin Nunes, chairman of the House intelligence committee. We asked the White House how so, and it responded with four examples — including the claim that the DOJ did not disclose that the Steele dossier was paid for by the Clinton campaign and the DNC. As we said, that’s misleading.
Below we review some of the competing claims made by the Republicans and Democrats in their memos, and the White House support for Trump’s claim that the Democratic memo “really verifies the Nunes memo.”
The Role of the Steele Dossier
A key area of disagreement between the two parties is the extent of the role that the Steele dossier played in obtaining court-approved surveillance of Page, who joined the Trump campaign in March 2016 as member of its foreign policy team. The dossier is a series of reports on supposed contacts between Russian officials and members of the Trump campaign, and it alleges the Kremlin has compromising information on Trump.
The GOP memo says the FBI and DOJ abused the FISA process by relying heavily on the Steele dossier.
“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,” according to the GOP memo. It also says that former FBI Deputy Director Andrew McCabe had privately testified before the House intelligence committee in December “that no surveillance warrant would have been sought from the FISC without the Steele dossier information.”
The Democratic memo does not verify any of that, despite what Trump suggests. In fact, the heavily redacted Democratic memo says the DOJ used multiple sources and had probable cause to conduct surveillance.
The Democratic memo says: “The FBI had an independent basis for investigating Page’s motivations and actions during the campaign, transition, and following the inauguration. As DOJ described in detail to the Court, Page had an extensive record as [redacted] prior to joining the Trump campaign. He resided in Moscow from 2004-2007 and pursued business deals with Russia’s state-owned energy company Gazprom. [Redacted.] As early as [redacted], a Russian intelligence officer [redacted] targeted Page for recruitment. Page showed [redacted].”
It also says, “DOJ detailed Page’s past relationships with Russian spies and interaction with Russian officials during the 2016 campaign, [redacted]. DOJ cited multiple sources to support the case for surveilling Page — but made only narrow use of information from Steele’s sources about Page’s specific activities in 2016, chiefly his suspected July 2016 meetings in Moscow with Russian officials. [Redacted.] In fact, the FBI interviewed Page in March 2016 about his contact with Russian intelligence, the very month candidate Donald Trump named him a foreign policy advisor.”
Under the law, the government can conduct surveillance on a U.S. person for 90 days and must produce “new findings” in order to gain an extension. The initial FISA application was approved in October 2016, and three subsequent applications were approved in January, April and June 2017. All four were appointed by Republican presidents, the Democratic memo notes.
As for McCabe’s closed-door congressional testimony, the White House told us that the Democratic memo did not challenge the GOP memo’s characterization of what McCabe said — that the FBI would not have sought FISA surveillance of Page without the Steele dossier. By not addressing that point, the Democratic memo is essentially “confirming” it, the White House said.
The Democratic memo does not address that particular part of McCabe’s testimony. But the Democrats in a separate “fact sheet” released the same day say “McCabe did not, as the Majority claims, ‘testif[y]’ that ‘no surveillance warrant would have been sought from the FISC without the Steele Dossier information’ and did not accept the Majority’s premise that the application relied on Steele’s entire ‘dossier.’ Instead, he defended the FBI and DOJ’s assessment that every component of the application — to include the specific reporting about Page — was necessary and appropriate to present to the Court.”
Did the FBI Pay Steele for Dossier?
The Republican memo suggests that the FBI paid Steele for the dossier but did not disclose that fact to the FISA court.
“The application does not mention … that the FBI had separately authorized payment to Steele for the same information” he collected for the Clinton campaign and the DNC.
The Democratic memo flatly states that Steele was not paid.
“DOJ never paid Steele for the ‘dossier,’” the memo says. “As the FBI’s records and Committee testimony confirms, although the FBI initially considered compensation … Steele ultimately never received payment from the FBI for any ‘dossier’-related information.”
The Republicans conceded this point in their response to the Democratic memo. In their response, the Republicans emphasized that their memo said the FBI “authorized payment to Steele” without saying whether the FBI actually paid Steele.
“As clearly stated in the GOP memo, FBI authorized payment to Steele for the dossier information — before he was terminated as an FBI source for making unauthorized disclosures to the media,” the Republican response said. “This financial motivation was not disclosed to the Court.” (Emphasis is in the Republican response.)
Allegations of Undisclosed Bias
The Republican memo says that Steele admitted to former Associate Deputy Attorney General Bruce Ohr in September 2016 that he ”was desperate that Donald Trump not get elected and was passionate about him not being president.” This information was not disclosed to the FISA court, the memo says.
At the time, Ohr was director of the Organized Crime Drug Enforcement Task Forces in the Department of Justice. He was not assigned to the Russia counterintelligence investigation. As both memos note, Ohr had a prior professional relationship with Steele.
In an email to us, the White House cited that September conversation as evidence that Steele was biased and the court was not aware of his bias. The White House claimed that the Democratic memo “failed to rebut” the Republican memo’s account of Steele’s conversation with Ohr and the fact that the FISA application did not disclose that conversation.
“Law enforcement officials knew that Steele adamantly opposed Donald Trump,” but they “apparently did not include this information in its FISA applications,” the White House told us.
The Democratic memo does not address what Steele may have told Ohr about his feelings toward Trump. But it does note that Ohr did not tell the FBI about Steele’s information on the Trump campaign until late November 2016.
“This occurred weeks after the election and more than a month after the Court approved the initial FISA application,” the Democratic memo says. (Emphasis is in the memo.)
Also, as we noted earlier, the court was aware that Steele was working for “a U.S.-based law firm” that had hired Fusion GPS to conduct research regarding Trump’s “ties to Russia,” as the FISA application said.
The White House also noted that the Democratic memo did not address the fact that Ohr’s wife worked for Fusion GPS and “in that capacity helped perform opposition research on Donald Trump.” The Democratic memo acknowledged that fact, but disputed the Republican memo’s claim that it was relevant to the initial FISA application or subsequent renewals.
“In late November 2016, Ohr informed the FBI of his prior professional relationship with Steele and information that Steele shared with him (including Steele’s concern about Trump being compromised by Russia),” the Democratic memo says. “He also described his wife’s contract work with Fusion GPS, the firm that hired Steele separately.”
But, again, the FBI didn’t learn of that fact until after the first FISA application was filed and approved on Oct. 21, 2016. And, as we noted, the subsequent FISA approvals required “new findings” to justify extending the surveillance of Page.
FISA Application’s Mention of George Papadopoulos
In their memo, the Republicans questioned why the FISA application mentioned George Papadopoulos — who, like Page, was a Trump foreign policy adviser.
“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 Republican memo says.
The Democratic memo says it was relevant information because the FBI investigation into Russia’s election meddling was triggered in late July when the FBI learned about contacts between Papadopoulos and “individuals linked to Russia.” Papadopoulos would later plead guilty to making false statements to the FBI and, in doing so, admitted that he learned in April 2016 that Russia possessed “dirt” on Clinton “in the form of ‘thousands of emails,’” according to a statement from the Justice Department stipulating the facts of the case against Papadopoulos.
“In claiming that there is ‘no evidence of any cooperation or conspiracy between Page and Papadopoulos,’ the Majority misstates the reason why DOJ specifically explained Russia’s courting of Papadopoulos,” the Democratic memo says. “Papadopoulos’s interaction with Russian agents, coupled with real-time evidence of Russian election interference, provided the Court with a broader context in which to evaluate Russia’s clandestine activities and Page’s history and alleged contact with Russian officials.”
Where the Memos Agree
In many instances, the Republican and Democratic memos present the same set of facts. But the Republican and Democratic members present or interpret these facts differently.
Both memos, for example, agree that the “Papadopoulos information triggered the opening of an FBI counterintelligence investigation in late July 2016,” as the GOP memo says. But that means, as the Democratic memo notes, that the FBI investigation started “more than seven weeks” before the FBI received Steele’s intelligence reporting in mid-September.
Both memos agree that the government did not disclose the names of the parties — the Clinton campaign and the DNC — that paid for Steele’s information. But the Democratic memo quotes extensively from the initial FISA application to show the court was aware that Steele’s information was paid political opposition research and likely to be used against Trump’s campaign.
The memos also agree that the FBI “sought and received a FISA probable cause order … authorizing electronic surveillance on Carter Page” on Oct. 21, 2016, as the Republican memo says. And they agree that there were three subsequent renewals of the initial surveillance request and “each renewal requires a separate finding of probable cause,” as the GOP memo says.
But the Republican memo accuses the FBI and DOJ of omitting “material and relevant information” that was “potentially favorable” to Page on all four occasions. The FBI disagrees with that assessment, accusing the Republican memo of distorting the facts.
In a statement issued two days before the Republican memo was released, the FBI said: “As expressed during our initial review, we have grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.”
The common set of facts contained in both reports leads the president to claim that the Democratic memo “really verifies the Nunes memo.” But it doesn’t. The memos represent a fundamental disagreement about the U.S. government’s methods and motives as it investigates Russia’s attempts to influence the outcome of the 2016 presidential campaign and whether anyone associated with the Trump campaign was involved in those efforts.