Trump Won't Declassify Democratic Rebuttal to Nunes

The White House Counsel said the president was “inclined to declassify” the Democrats’ memo, but that “he is unable to do so at this time” because the memo contains “numerous properly classified and especially sensitive passages.”

Representative Adam Schiff heads to a closed door meeting of the House Intelligence Committee. (Aaron Bernstein / Reuters )

The White House has opted not to declassify a memo written by Congressman Adam Schiff and his Democratic colleagues on the House Intelligence Committee until the panel complies with Justice Department and FBI recommendations to redact certain portions of the document.

The 10-page document was written in response to a memo written by the committee’s chairman, Devin Nunes, outlining alleged surveillance abuses by the Justice Department and FBI in pursuit of a surveillance order against early Trump campaign adviser Carter Page in October 2016. The FBI was, and still is, investigating Russian interference in the 2016 election, and whether the Trump campaign aided the effort. At issue is whether, as Nunes alleged, the FBI misled the Foreign Intelligence Surveillance Court by improperly concealing the political origin of some of the evidence; both Democrats and the FBI have said the charge is false.

White House Counsel Don McGahn told Nunes in a letter on Friday that Trump is “inclined to declassify” the Democrats’ memo, but that “he is unable to do so at this time” because the memo contains “numerous properly classified and especially sensitive passages.”

Trump has directed the DOJ to offer guidance to the committee on how to “mitigate the risks” of making the classified information public, according to McGahn, and “stands ready to review any subsequent draft of the February 5th memorandum for declassification at the earliest opportunity.”

The Trump administration treated Nunes’s memo, which the chairman would not allow the FBI or the Department of Justice to review before it was sent to the White House to declassify, very differently. Department of Justice officials wrote a letter to Nunes urging him not to release the document, and the FBI issued a rare public statement expressing “grave concern” over the memo’s impending release.

Trump declassified the Nunes memo anyway, after conducting a national-security and legal review with relevant staff and the director of national intelligence, McGahn said in a letter accompanying the Nunes memo’s release. It was not clear what steps were taken to mitigate the Justice Department’s concerns. The memo contained no redactions. Trump has said that the Nunes memo vindicates his belief that the Russia investigation, which is now being run by Special Counsel Robert Mueller, is politically motivated. The Nunes memo acknowledges, however, that the Russia investigation began in July of 2016, after Trump adviser George Papadopoulos was offered derogatory information on Hillary Clinton from Russian sources. That inquiry has since broadened to examine whether or not the president attempted to obstruct justice by firing former FBI Director James Comey.

Democrats emphasized when preparing to send their rebuttal memo to the White House that the Justice Department and FBI would be given the chance to review the document before it would be made public—a step Nunes declined to take, he said, because the FBI and Justice Department were the subjects of an ongoing investigation by Republicans on the House Intelligence Committee.

It is unclear whether Nunes will accept the changes made by the FBI and Justice Department to the Democrats’ memo, given their purported status as a subject in the Republicans’ investigation. His spokesman did not return a request for comment.

Democrats have pressed Nunes for answers over whether he coordinated with the White House to research and produce the memo’s claims. He told the committee on Monday that “there was involvement in drafting the memo with the White House,” but Democrats were not satisfied by that answer, because it left open the possibility that the administration had aided the production of the memo in some way. Schiff told me on Tuesday that it sounded like the committee’s lawyer had written that response for Nunes. Congressman Eric Swalwell, meanwhile, a Democrat who sits on the committee, told me it’s worth asking whether Trump, who is the subject of an ongoing FBI investigation, should have access to evidence that’s relevant to that investigation.

The Nunes memo focused largely on the inclusion of a dossier written by former British intelligence officer Christopher Steele in the FBI’s application for an order to spy on Page. Steele’s dossier was produced on behalf of Fusion GPS, first retained by anti-Trump Republicans and then a law firm hired by the Democratic National Committee, to investigate Trump’s ties to Russia. Republicans alleged that the FBI had failed to tell the Foreign Intelligence Surveillance Court that Steele’s research on Trump’s Russia ties, which implicated Page, had been financed by a law firm hired by the Democratic National Committee.

But Democratic Representative Jim Himes, who sits on the committee, said on Monday that the Democrats’ memo shows that “the judge was alerted” and “informed” to “the possible motivation of this particular source.” He noted that the bureau did not disclose specific entities in the application because of “masking” standards, which aim to minimize the exposure of U.S. citizens in intelligence reports.

Schiff, one of two members of the House Intelligence Committee who has reviewed the highly-classified FISA application at the heart of the controversy (Republican Trey Gowdy has also reviewed the material) said during the meeting on Monday that the Democrats’ memo aims to “rebut the errors, omissions, and distortions in the Republican-drafted memo.” Democrats alleged, among other things, that the Republicans’ characterization of former FBI Deputy Director Andrew McCabe’s testimony before the panel last year, which Republicans said proved that the order on Page would not have been sought absent the Steele dossier, was taken out of context.

In a meeting on Monday, the committee voted unanimously to release the Democrats’ memo, which Schiff said he hoped would “ease any lingering controversy over the investigative imperative to monitor Mr. Page” and “the motivations of those involved.” Page has been on the FBI’s radar since at least 2013, when two Russian intelligence agents attempted to recruit him as a spy. Two weeks after the FBI warned Page that the Russians were targeting him, Page boasted in a letter to a book editor that he had served as an informal adviser to Kremlin staff, according to Time magazine.

Nunes has said that his investigation into the Justice Department’s use of the Steele dossier is entering “phase 2,” but he declined on Monday to tell his committee colleagues what the next steps would look like. I reported earlier this week that Nunes’s next targets are a former State Department official and an ex-journalist with ties to the Clinton family.

From here, the House Intelligence Committee could work to produce a memo that is sufficiently redacted to win the administration’s approval. The House could also vote to declassify the memo in its entirety, or a lawmaker could read it into the record on the floor, both unlikely acts of defiance against the president. But it’s also possible the Democratic rebuttal to the Nunes memo will never see the light of day.