The Democrats on the House Permanent Select Committee on Intelligence (“HPSCI”) wrote a memorandum that was released yesterday, February 24, 2018.  Although the Democrats’ Schiff memorandum is in response to the Nunes memorandum released on February 2, 2018, by the Republicans on the HPSCI, any evaluation of the Democrats’ memorandum must include discussion of the Grassley memorandum released on February 6, 2018 by the Republicans on the Senate Committee on the Judiciary. This is because the Senate memorandum is more detailed.

On February 21, 2018, I explained that the Senate memorandum “states that the FBI largely relied upon Steele’s credibility in obtaining the FISA warrants . . . .” At that time, I also noted:

The Senate memorandum states that the October 21, 2016 FISA [Foreign Intelligence Surveillance Act] application notes the existence of a news article dated September 26, 2016, which is presumably a Yahoo News article by Michael Isikoff entitled “U.S. Intel Officials Probe Ties Between Trump Adviser and Kremlin.”  The news article contained information that was also in the dossier.  According to the Senate memorandum, Steele “had previously told the FBI he had not shared the information with the press” and the application to the FISA Court stated that the “FBI does not believe that [Steele] directly provided this information to the press.”  The Senate memorandum states: “The FBI repeatedly represented to the court that Mr. Steele told the FBI he did not have unauthorized contacts with the press about the dossier prior to October 2016.”

The Senate memorandum then states that in January 2017 the FBI told the FISA Court that the FBI suspended its relationship with Steele in October 2016 because Steele had disclosed information about his dossier to the press in October 2016 without authorization.  According to the Senate memorandum, the FBI told the FISA Court that Steele did this because he was bothered by [Former FBI Director James] Comey’s reopening, earlier in October 2016, of the investigation into Hillary Clinton’s emails.  The Senate memorandum states that the FBI repeated this explanation in the FISA warrant renewal applications in April and June of 2017.

The Democrats’ memorandum confirms that the FISA warrant applications presented Steele as a credible witness to the FISA Court.  The Democrats’ memorandum states: “DOJ explained the FBI’s reasonable basis for finding Steele credible:  . . .  The applications also reviewed Steele’s multi-year history of credible reporting on Russia and other matters . . . .”

The Democrats’ memorandum does not contradict any of the factual assertions summarized above from the Senate memorandum. The Democrats’ memorandum states that the HPSCI Republicans do not “cite evidence that Steel disclosed to Yahoo! details included in the FISA warrant, since the British Court filings to which they refer not address what Steele may have said to Yahoo!”  But the Senate memorandum does cite such evidence.  The Senate memorandum cites Steele’s British court filings, and those court filings do address what Steele may have said to Yahoo!  The Senate memorandum states:

In Steele’s sworn court filings in litigation in London, he admitted that he “gave off the record briefings to a small number of journalists about the pre-election memoranda [i.e., the dossier] in late summer/autumn 2016.”  In another sworn filing in that case, Mr. Steele further stated that journalists from “the New York Times, the Washington Post, Yahoo News, the New Yorker, and CNN” were “briefed at the end of September 2016 by [Steele] and Fusion at Fusion’s instruction.”  The filing further states that Mr. Steele “subsequently participated in further meetings at Fusion’s instruction with Fusion and the New York Times, the Washington Post, and Yahoo News, which took place mid-October 2016.”  According to these court filings, “[t]he briefings involved the disclosure of limited intelligence regarding indications of Russian interference in the US election process and the possible co-ordination of members of Trump’s campaign team and Russian government officials.”  In his interview with the Committee, Glenn Simpson of Fusion GPS confirmed this account by Mr. Steel and his company as filed in the British court.

The Senate memorandum accurately quotes from page 8 of Steele’s British court filing.

As I explained, the Senate memorandum asserts that Steele apparently lied to the FBI, the FBI/DOJ never disclosed this apparent lie to the FISA Court, and the DOJ made a false statement to the FISA Court about Steele’s motivation for talking to the press.  I stated:

The Senate memorandum explains that the problem with the FBI’s statement to the FISA Court about Steele’s motivation, is that by April of 2017, evidence had emerged establishing that Steele had disclosed information about his dossier to the press before Comey reopened the Clinton investigation.  This evidence included sworn court filings by Steele in civil litigation in England, which was reported at the time in the American press.  Therefore, this evidence was probably known to the FBI[/DOJ] before the April 2017 and June 2017 renewal applications, but the Senate memorandum does not definitively establish this fact.  According to the Senate memorandum, despite this evidence, in the April 2017 and June 2017 FISA warrant renewal applications against [Carter] Page, the FBI[/DOJ] repeated the false explanation about Steele’s motivation for talking to the press.  Assuming that the FBI/DOJ knew when it made these renewal applications that the explanation was false, which is highly likely, the FBI[/DOJ] lied to the FISA Court.

In addition, the Senate memorandum explains that it appears that Steele lied to the FBI by telling the FBI that he was not the source of the Yahoo News story in September 2016, and the FBI[/DOJ] never told the FISA Court that Steele lied to the FBI.

Therefore, the FBI[/DOJ] relied on Steele’s credibility in making the FISA Court applications against Page.  But when it became known that Steele’s credibility was destroyed, the FBI[/DOJ] hid this from the FISA Court, and apparently lied to the FISA Court when trying to excuse Steele’s leaking to the press.  In so doing, the FBI[/DOJ] obtained renewals of the warrant against Page in April and June of 2017.

The Democrats’ memorandum does not dispute any of this.  Instead, the Democrats’ memorandum states:

While explaining why the FBI viewed Steele’s reporting and sources as reliable and credible, DOJ also disclosed:  . . . the fact of and reason for his termination as a source.... (snip) 

DOJ informed the Court in its renewals that the FBI acted promptly to terminate Steele after learning from him (after DOJ filed the first warrant application) that he had discussed his work with a media outlet in late October.  The January 2018 renewal further explained to the Court that Steele told the FBI that he made his unauthorized media disclosure because of his frustration at Director Comey’s public announcement shortly before the election that the FBI reopened its investigation into candidate Clinton’s email use.

According to the Senate memorandum, apparently Steele lied to the FBI about his disclosures to the press, and the FBI never told the FISA Court about this apparent lie when the FISA warrant was renewed in April 2017 and June 2017.  Steele’s termination was not only because of his disclosure of information to the press, but also for lying to the FBI about it.  These issues are not addressed, and therefore, not disputed, in the Democrats’ memorandum.  The falsity of the FBI/DOJ’s statement to the FISA Court in the later renewal applications about Steele’s motivation for talking to the press is not addressed, and therefore, not disputed, in the Democrats’ memorandum.

Along with the Democrat politicians, many in the media will present the Democrats’ memorandum as a complete refutation of the legitimate concerns raised by Republicans.  Let’s hope that the FISA Court judges take the opposite view.

Adam Schiff caricature by DonkeyHotey

Allan J. Favish is an attorney in Los Angeles.  His website is allanfavish.com.  James Fernald and Mr. Favish have co-authored a book about what might happen if the government ran Disneyland, entitled "Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).