It’s important to differentiate between the Trump-Russia Investigation started by the FBI in July 2016 and the October 21, 2016 FISA Warrant granting surveillance on Carter Page.
On April 4, 2018, Devin Nunes sent a letter to Deputy AG Rosenstein and FBI Director Chris Wray (pdf here):
There are two separate components to Nunes’ letter:
- Information – known as the “Electronic Communication” (EC) – used to open an FBI Counterintelligence Investigation into the Trump Campaign in July 2016.
- The FISA Application used to obtain a FISA warrant on Carter Page on October 21, 2016.
These are separate and distinct events – and although there are overlaps, each contain their own distinct information.
The following portion of Nunes’ letter relates to the July 2016 opening of the FBI Counterintelligence Investigation into the Trump Campaign:
- More than a month ago, on February 27, 2018 , I requested Director Wray’s assistance in gaining access to an unredacted version of an Electronic Communication (EC) related to the opening of an FBI counterintelligence investigation into the Trump campaign.
- On March 14, 2018, Committee investigators were given access to a still heavily redacted version of the EC, which – as I informed Director Wray the next day via phone – was unsatisfactory.
- On March 23, 2018, FBI’s Assistant Director for Legislative Affairs informed the Committee that FBI would refuse to further unredact the EC based on its supposed sensitivity.
- The document in question is not highly classified, and law enforcement sources have apparently not been shy about leaking to the press information that the Department and Bureau refuse to share with Congress.
To my knowledge, no Congressional member has seen a fully unredacted version of the Electronic Communication – used to initiate the FBI’s July 2016 Counterintelligence Investigation.
We shall return to the Electronic Communication in a subsequent post.
The next portion of Nunes’ letter relates to the FISA Application used to obtain a FISA warrant on Carter Page on October 21, 2016.
- Additionally, DOJ has for months restricted Member access to other documents responsive to the August 24 subpoenas, including four Foreign Intelligence Surveillance Act (FISA) applications targeting Carter Page.
- My initial designation of Rep. Trey Gowdy to review the documents was “made without prejudice to, and shall not limit or waive the authority of all Members of the House Permanent Select Committee on Intelligence from reviewing the documents at a later date upon request.”
- OLA [DOJ’s Office for Legislative Affairs] finally informed the Committee on February 26, 2018, that “the Department has not agreed to allow further member access.”
- Given that multiple members of other committees have been the beneficiaries of such access, this arbitrary resistance to legitimate oversight is unacceptable.
This last portion of Nunes’ letter is telling. If “multiple members of other committees have been the beneficiaries of such access,” why has Nunes’ House Intelligence Committee not had similar access.
Here is who has seen the FISA Application:
Senate Judiciary Committee: Chairman Chuck Grassley, Vice Chairman Sen. Dianne Feinstein, and Senators Lindsey Graham and Sheldon Whitehouse.
House Judiciary Committee: Chairman Bob Goodlatte, Ranking Member Jerrold Nadler (or staff) and Rep. John Ratcliffe.
House Intelligence Committee: Nunes’ designation, Trey Gowdy – and ranking member Adam Schiff. Schiff was granted access in preparation for his rebuttal memo. Schiff has been an ongoing source of leaks but only when the full Committee has access.
There are two explanations for the varied disclosure of the FISA Application.
First, the Committees of Goodlatte and Grassley have not been major sources of leaks. Goodlatte has been working most closely with the Inspector General.
Nunes’ House Intelligence Committee has been plagued by leaks from the Democratic side – specifically Schiff and Swalwell.
To be clear – the leaks are coming from the Democrat side.
Grassley, Goodlatte and Nunes are all rock solid. But other Committee Members – especially House Intelligence Committee members Swalwell and Schiff – are not.
The second reason is investigative-based.
Inspector General Horowitz announced a second Initiation of Review on March 28, 2018.
Horowitz stated that he was now investigating FISA Abuse relating to the Carter Page FISA Application. It was subsequently announced that Outside Prosecutor John Huber was assisting the Inspector General.
Huber’s appointment is not new. Huber – along with a full prosecutorial team – has been in place since at least November 13, 2017 – probably much longer. See:
The announcement by the Inspector General – along with the announcement of Huber’s appointment as an Outside Prosecutor – would seem to indicate a new investigation. This would result in a continuing restriction on information related to the FISA Application.
In the March 29, 2018 post, Understanding the Inspector General’s Announcement, I made the following point:
The Inspector General already has all the information and evidence. It’s the manner of dissemination and disclosure that’s being revealed by the Inspector General’s announcement.
The Inspector General was noting his Investigation would be revealed in Phases:
- Phase I – The Clinton Email Investigation.
- Phase II – Carter Page FISA Application.
- Phase III – Russia-Trump Investigation.
Phase I and II work is essentially complete. Phase III efforts may still be ongoing as Phase III encompasses outside Agencies – like Brennan’s CIA.
What transpired next was equally telling.
On April 6, 2018, Assistant Attorney General Stephen Boyd responded to Nunes’ April 4, 2018 letter (pdf here):
The Department and the FBI agree to permit all members of the Committee to review the FISA applications and renewals in camera at the Department. The Department considers this an extraordinary accommodation based on unique facts and circumstances.
We are also extending this review opportunity to the members of the Senate Select Committee on Intelligence.
The DOJ agreed to allow all members of the House Intelligence Committee and the Senate Intelligence Committee to review the FISA Application.
This material would not be opened for Congressional Committee review if the Inspector General was just beginning his Phase II Investigation.
The Inspector General was not initiating the start of a Phase II Investigation, he was announcing a second, coming Report on Phase II.
Ultimately, it may be Phase III – opening of the Trump-Russia Investigation – that proves most interesting – and most important.