File 026248
White House Letter Regarding Declassification of FISA Surveillance Memorandum (File 026248)
Presidential letter from Counsel Donald F. McGahn II authorizing declassification of a House Intelligence Committee memorandum concerning alleged FISA abuses by the DOJ and FBI during the 2016 election, with focus on surveillance of Trump campaign advisor Carter Page.
Summary
This document is a February 2, 2018 letter from White House Counsel Donald F. McGahn II to House Intelligence Committee Chairman Devin Nunes, authorizing declassification of the controversial FISA memorandum. The letter explains the President's constitutional authority to declassify information and outlines the review process involving the Office of the Director of National Intelligence and Department of Justice. The attached memorandum details the House Intelligence Committee's investigation into alleged abuses of the Foreign Intelligence Surveillance Act by the DOJ and FBI, specifically regarding the October 2016 FISA warrant application targeting Trump campaign volunteer advisor Carter Page, which the memo claims was based substantially on the politically-funded Christopher Steele dossier without full disclosure of its funding sources to the FISC.
THE WHITE HOUSEWASHINGTONFebruary 2, 2018The Honorable Devin NunesChaiiman, House Permanent Select Committee on IntelligenceUnited States CapitolWashington, DC 20515Dear Mr. Chaiiiiian:On January 29, 2018, the House Permanent Select Committee on Intelligence (hereinafter "theCommittee") voted to disclose publicly a memorandum containing classified informationprovided 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 ofRepresentatives, the Committee has forwarded this Memorandum to the President based on itsdetennination that the release of the Memorandum would serve the public interest.The Constitution vests the President with the authority to protect national security secrets fromdisclosure. 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 methodsand national defense. See, e.g., Dep 't of Navy v. Egan, 484 U.S. 518, 527 (1988). In order tofacilitate appropriate congressional oversight, the Executive Branch may entrust classifiedinformation to the appropriate committees of Congress, as it has done in connection with theCommittee's oversight activities here. The Executive Branch does so on the assumption that theCommittee will responsibly protect such classified information, consistent with the laws of theUnited 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 accommodatecongressional requests to declassify specific materials in the public interest.1 However, publicrelease of classified information by unilateral action of the Legislative Branch is extremely rareand raises significant separation of powers concerns. Accordingly, the Committee's request torelease the Memorandum is interpreted as a request for declassification pursuant to thePresident's authority.The President understands that the protection of our national security represents his highestobligation. Accordingly, he has directed lawyers and national security staff to assess theSee, e.g., S. Rept. 114-8 at 12 (Administration of Barack Obama) ("On April 3, 2014. . . the Committee agreed tosend the revised Findings and Conclusions, and the updated Executive Summary of the Committee Study, to thePresident for declassification and public release."); H. Rept. 107-792 (Administration of George W. Bush) (similar);E.O. 12812 (Administration of George H.W. Bush) (noting Senate resolution requesting that President provide fordeclassification of certain information via Executive Order).declassification request, consistent with established standards governing the handling ofclassified information, including those under Section 3.1(d) of Executive Order 13526. Thosestandards permit declassification when the public interest in disclosure outweighs any need toprotect the information. The White House review process also included input from the Office ofthe Director of National Intelligence and the Department of Justice. Consistent with this reviewand these standards, the President has determined that declassification of the Memorandum isappropriate.Based on this assessment and in light of the significant public interest in the memorandum, thePresident has authorized the declassification of the Memorandum. To be clear, theMemorandum reflects the judgments of its congressional authors. The President understandsthat oversight concerning matters related to the Memorandum may be continuing. Though thecircumstances leading to the declassification through this process are extraordinary, theExecutive Branch stands ready to work with Congress to accommodate oversight requestsconsistent with applicable standards and processes, including the need to protect intelligencesources and methods.Sincerely,Donald F. McGahn IICounsel to the Presidentcc: The Honorable Paul RyanSpeaker of the House of RepresentativesThe Honorable Adam SchiffRanking Member, House Permanent Select Committee on IntelligenceUN ".-1To:From:Subject: Foreign Intelligence Surveillance Act Abuses at the Department of Justice and theFederal Bureau of InvestigationASSIHEir"""""s"Declassified by order of the PresidentFebruary 2, 2018January 18, 2018HPSCI Majority MembersHPSCI Majority StaffPurposeThis memorandum provides Members an update on significant facts relating to theCommittee's ongoing investigation into the Department of Justice (DOJ) and Federal Bureau ofInvestigation (FBI) and their use of the Foreign Intelligence Surveillance Act (FISA) during the2016 presidential election cycle. Our findings, which are detailed below, 1) raise concerns withthe legitimacy and legality of certain DOJ and FBI interactions with the Foreign IntelligenceSurveillance Court (FISC), and 2) represent a troubling breakdown of legal processes establishedto protect the American people from abuses related to the FISA process.Investigation UpdateOn 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 aU.S. citizen who served as a volunteer advisor to the Trump presidential campaign. Consistentwith requirements under FISA, the application had to be first certified by the Director or DeputyDirector of the FBI. It then required the approval of the Attorney General, Deputy AttorneyGeneral (DAG), or the Senate-confirmed Assistant Attorney General for the National SecurityDivision.The FBI and DOJ obtained one initial FISA warrant targeting Carter Page and three FISArenewals from the FISC. As required by statute (50 U.S.C. §1805(d)(1)), a FISA order on anAmerican citizen must be renewed by the FISC every 90 days and each renewal requires aseparate finding of probable cause. Then-Director James Comey signed three FISA applicationsin question on behalf of the FBI, and Deputy Director Andrew McCabe signed one. Then-DAGSally Yates, then-Acting DAG Dana Boente, and DAG Rod Rosenstein each signed one or moreFISA applications on behalf of DOJ.Due to the sensitive nature of foreign intelligence activity, FISA submissions (includingrenewals) before the FISC are classified. As such, the public's confidence in the integrity of theFISA 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 inprotecting the rights of Americans, which is rem orce 5y9 -day renewals of surveillanceorders, is necessarily dependent on the government's production to the court of all material andrelevant facts. This should include infoimation potentially favorable to the target of the FISAlk.J1 LA-1\-L,1/I1V,11V71\1116PROPERTY OF THE U.S. HOUSE OF REPRESENTATIVESapplication that is known by the government. In the case of Carter Page, the government had atleast four independent opportunities before the FISC to accurately provide an accounting of therelevant facts. However, our findings indicate that, as described below, material and relevantinformation was omitted.1) The "dossier" compiled by Christopher Steele (Steele dossier) on behalf of theDemocratic National Committee (DNC) and the Hillary Clinton campaign foimed anessential part of the Carter Page FISA application. Steele was a longtime FBI source whowas paid over $160,000 by the DNC and Clinton campaign, via the law firm Perkins Coieand research firm Fusion GPS, to obtain derogatory infoiniation on Donald Trump's tiesto Russia.a) Neither the initial application in October 2016, nor any of the renewals, disclose orreference the role of the DNC, Clinton campaign, or any party/campaign in fundingSteele's efforts, even though the political origins of the Steele dossier were thenknown to senior DOJ and FBI officials.b) The initial FISA application notes Steele was working for a named U.S. person, butdoes not name Fusion GPS and principal Glenn Simpson, who was paid by a U.S. lawfirm (Perkins Coie) representing the DNC (even though it was known by DOJ at thetime that political actors were involved with the Steele dossier). The application doesnot mention Steele was ultimately working on behalf of___and paid by—the DNC andClinton campaign, or that the FBI had separately authorized payment to Steele for thesame information.2) The Carter Page FISA application also cited extensively a September 23, 2016, YahooNews 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 informationleaked by Steele himself to Yahoo News. The Page FISA application incorrectly assessesthat Steele did not directly provide infoimation to Yahoo News. Steele has admitted inBritish court filings that he met with Yahoo News—and several other outlets—inSeptember 2016 at the direction of Fusion GPS. Perkins Coie was aware of Steele'sinitial media contacts because they hosted at least one meeting in Washington D.C. in2016 with Steele and Fusion GPS where this matter was discussed.a) Steele was suspended and then tei___ninated as an FBI source for what the FBI definesas the most serious of violations—an unauthorized disclosure to the media of hisrelationship with the FBI in an October 30, 2016, Mother Jones article by DavidCorn. Steele should have been terminated for his previous undisclosed contacts withYahoo and other outlets in September—before the Page application was submitted toUNCLASSIFIE1//1 k_/1.\_1`4PROPERTY OF THE U.S. HOUSE OF REPRESENTATIVESthe FISC in October—but Steele improperly concealed from and lied to the FBI aboutthose contacts.b) Steele's numerous encounters with the media violated the cardinal rule of sourcehandling—maintaining confidentiality—and demonstrated that Steele had become aless than reliable source for the FBI.3) Before and after Steele was terminated as a source, he maintained contact with DOJ viathen-Associate Deputy Attorney General Bruce Ohr, a senior DOJ official who workedclosely with Deputy Attorneys General Yates and later Rosenstein. Shortly after theelection, 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 getelected and was passionate about him not being president." This clear evidence ofSteele's bias was recorded by Ohr at the time and subsequently in official FBI files___butnot reflected in any of the Page FISA applications.a) During this same time period, Ohr's wife was employed by Fusion GPS to assist inthe cultivation of opposition research on Trump. Ohr later provided the FBI with allof his wife's opposition research, paid for by the DNC and Clinton campaign viaFusion GPS. The Ohrs' relationship with Steele and Fusion GPS was inexplicablyconcealed from the FISC.4) According to the head of the FBI's counterintelligence division, Assistant Director BillPriestap, corroboration of the Steele dossier was in its "infancy" at the time of the initialPage FISA application. After Steele was terminated, a source validation report conductedby an independent unit within FBI assessed Steele's reporting as only minimallycorroborated. Yet, in early January 2017, Director Comey briefed President-elect Trumpon a summary of the Steele dossier, even though it was—according to his June 2017testimony—"salacious and unverified." While the FISA application relied on Steele'spast record of credible reporting on other unrelated matters, it ignored or concealed hisanti-Trump financial and ideological motivations. Furthermore, Deputy DirectorMcCabe testified before the Committee in December 2017 that no surveillance warrantwould have been sought from the FISC without the Steele dossier information.ASS', 'IIIti*ErniffiePROPERTY OF THE U.S. HOUSE OF REPRESENTATIVES5) The Page FISA application also mentions information regarding fellow Trump campaignadvisor George Papadopoulos, but there is no evidence of any cooperation or conspiracybetween Page and Papadopoulos. The Papadopoulos infoimation triggered the openingof 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 forimproper text messages with his mistress, FBI Attorney Lisa Page (no known relation toCarter Page), where they both demonstrated a clear bias against Trump and in favor ofClinton, whom Strzok had also investigated. The Strzok/Lisa Page texts also reflectextensive discussions about the investigation, orchestrating leaks to the media, andinclude a meeting with Deputy Director McCabe to discuss an "insurance" policy againstPresident Trump's election.C S ATI I isTif.i+DTV) \J__.1/11`4 \-/1 k-J1PROPERTY OF THE U.S. HOUSE OF REPRESENTATIVES