Dissecting the Grassley-Graham Letter’s Criticisms of the Carter Page FISA Application

In a recently released letter and accompanying memo, Senate Judiciary Committee Chairman Sen. Chuck Grassley (R- Iowa) and Sen. Lindsey Graham (R-S.C.) outline concerns that reinforce the Nunes memo in some respects, but undermine it in others. Like the Nunes memo, the senators’ letter contains allegations about how the FBI and Justice Department sought the FISA application of former Trump campaign foreign policy adviser Carter Page. While the Nunes memo has sucked up lots of oxygen, the Grassley-Graham letter has not received the attention it deserves. It is important to parse the content of the letter, including its specific allegations.

The authors of the letter generally have more credibility than Rep. Devin Nunes (R-Calif.). Still, it is difficult to unpack the valid claims in their letter apart from its appearance as a partisan initiative and a distraction from the key item of business, which is the Russian government’s interference in the 2016 presidential election. Like the Nunes memo, the Grassley-Graham letter also has its own hyper-politicized origins that detract from its credibility. Its purported purpose is a referral of Christopher Steele, the former MI6 officer who compiled the controversial Trump dossier, to the FBI for possibly making false statements to the bureau. But the FBI needs no referral from the two Senators, since the information and actions of Steele were already well known to it. Sending their surprise letter to the Justice Department in early January, the two senators also decided not to consult beforehand with the ranking member of their committee, Sen. Dianne Feinstein (D-Calif.), nor any of the other Democratic colleagues on the committee. On the day the Nunes memo was made public, Grassley asked the Justice Department to declassify his letter for public release. Sean Hannity seemed to have wind of this move. The Fox News show host informed his audience on Friday, “I’m told that we might have a Grassley memo as early as next week that takes it yet to another level.” This all seemed well orchestrated.

So then what to make of the claims in the Grassley-Graham letter concerning the FISA application? Here’s my best assessment, remembering that without access to the actual FISA application, it is difficult to judge the accuracy of what the senators allege.

Before getting into specific claims that the letter makes, it is worth examining what the memo omits and to view the forest before closely inspecting some of the trees. The document raises doubt about whether the FBI properly sought a FISA application against Page, but it conspicuously does not make the claim that the application was unfounded or that an innocent American was wrongfully surveilled. That may be the wisest choice, since there is an avalanche of information, in the public record alone, of Page’s involvement with the Kremlin and Russian spies, plus his highly suspicious denials of meetings with Russians. Several of those denials have since been disproven, even by Page himself. He is not exactly the poster child you want on your side of a political or legal argument.

What’s more, like the Nunes memo, the Grassley-Graham letter omits the significance of several judges’ approving subsequent renewals of the Page warrant, each time on a separate finding of probable cause, with the Steele dossier likely assuming less significance each time. Plus, each of those judges presumably relied on the FBI showing that the surveillance was yielding productive information as the Bureau had told each judge it would.

One more point about keeping sight of the forest: Graham, as well as Rep. Trey Gowdy (R.-S.C.) and other Republican members of the House Intelligence Committee who voted to release the Nunes memo, have explicitly stated that their concerns about the FISA application for Page should not be used to undermine the Mueller investigation.  

There are three ways in which the Grassley-Graham letter goes even further than the Nunes memo in its criticisms of the FBI’s handling of the FISA application.

First, the letter states that the FISA application did not include any “meaningful corroboration” of the Steele dossier allegations against Page, and that Comey’s response to the criticism in closed session was not to refer to other forms of corroboration, but instead to depend on Steele’s general reliability. It is hard to know how to evaluate the two senators’ claim of lack of “meaningful” corroboration, since there may have been ample other evidence about Page’s recent relationships with Russian agents. By late October 2016, when the FISA application was submitted, Page’s unusual trip to Russia while a member of the Trump campaign was well known. The Nunes memo itself seems to suggest that around this time, the Steele dossier was at least “minimally corroborated.” And, in response to the release of the Nunes memo, Rep. Adam Schiff (D-Calif.) stated, “Only very select parts of what Christopher Steele reported related to Carter Page were included within the application, and some of those things were already subject to corroboration.”

What’s more, Page’s own testimony to the House Intelligence Committee, which occurred two months before the senators’ letter, corroborated parts of the Steele dossier. For more on this, read Natasha Bertrand’s “Carter Page’s testimony is filled with bombshells—and supports key portions of the Steele dossier.” Since Grassley and Graham’s ultimate claim involves concerns about Steele’s credibility, one would have expected them at least to address the subsequent corroboration by Page, even if not other aspects of the dossier that may have also been validated (see John Sipher’s two articles at Just Security). That said, the FBI may have been unaware of some of the corroborating details about Page in late October when DOJ applied to the FISA court.

The Grassley-Graham memo also includes an important line that the FBI itself came to the determination that “[Steele’s] reporting is credible.” We should all remember that is now a part of the public record. Grassley and Graham attempt to tar the entire Steele dossier with the suggestion that James Comey told Congress the dossier is “salacious and unverified.” That is the same foul committed by the Nunes memo, and smacks of bias. Here’s the Pulitzer Prize-winning PolitiFacts ruling:

“Comey’s careful phrasings in four portions of his testimony indicate that he meant only that portions of it were “salacious and unverified.” The memo twists Comey’s words in an effort to leverage his stature to undercut the dossier.”

Second, the Grassley-Graham letter states that “the bulk of the application consists of allegations against Page that were disclosed to the FBI by Mr. Steele and are also outlined in the Steele dossier. The application appears to contain no additional information corroborating the dossier allegations…” Note that the second sentence does not say the application failed to contain additional information that implicated Page, only that it did not contain additional information corroborating the specific allegations in the Steele dossier. Nevertheless, it is important that the senators claim that the Steele dossier and other information that Steele provided the FBI constituted “the bulk of information” in the original application (elsewhere they describe the Steele information as “a significant portion” of the FISA application).

But what about that forest? What’s publicly known about Page suggests there may have been ample reason for the Justice Department to seek a surveillance warrant and for federal judges to authorize and reauthorize it. Nothing in the letter changes that fact. Indeed, not even Gowdy is now willing to say that the initial FISA order was unjustified.

That’s an especially important sign since Gowdy says he was “intricately involved” in drafting the Nunes memo and Nunes gave Gowdy the exclusive responsibility of viewing the underlying classified information on behalf of the Republican members of the House Intelligence Committee. Why could Gowdy not say the surveillance warrant was unjustified? Because of “other information they had on Carter Page,” Gowdy told CBS’s Face the Nation. The senators’ letter itself is also inconsistent in this regard. Having said the Steele dossier constituted “the bulk of information” in the original application, the letter refers elsewhere to “a total of four FISA applications relying on the dossier to seek surveillance of Mr. Carter Page, as well as numerous other FBI documents relating to Mr. Steele.”

Third, even though the letter frames the criminal referral around the issue whether Steele lied to the FBI, the senators suggest that the Justice Department/FBI may have committed an error in not presenting concerns about Steele’s credibility to the court. According to Grassley and Graham, the problem is that Steele spoke to journalists about his findings after allegedly making some kind of commitment to the FBI that he would do no such thing, and Steele allegedly told the Bureau that he provided the dossier information only to the FBI and Fusion. It is unclear how exactly that undermines Steele’s credibility, which was derived from his extensive history of providing the United States reliable information about Russia and Ukraine. Steele reportedly also turned to reporters at one point after he was dismayed at the FBI’s inaction on pursuing the Russia investigation (and in sharp contrast to Comey’s public statements about reopening the Hillary Clinton email investigation). In other words, Steele might claim the FBI was not living up to its part of the arrangement. It’s difficult to know who is right here, and it’s possible both Steele and the FBI may be. There is also a weakness is the letter’s theory of the case: how could Steele possibly think he could get away with lying to the FBI about giving the dossier information to reporters as recently as late September, when he must have assumed it could lead to reports like Isikoff’s in which it would be fairly obvious that he was a source? The answer may be that Steele didn’t lie to the FBI.

In terms of Steele’s credibility and the letter’s lack of credibility, I should add that there other signs of bad faith in the letter. Perhaps most conspicuously, Grassley and Graham refer to “a memorandum by Mr. Steele that was not published by Buzzfeed,” which makes it sound like another part of Steele’s dossier. That representation is untrue, and appears written for public release, and not for the FBI, which would know better. The document in question was a dossier prepared by Cody Shearer, and Steele reportedly handed it over to the FBI as he had promised to give them additional information that came into his possession. The letter also penalizes Steele for including in his hand-written note that he did not produce the document, and that it came from politically affiliated sources. If anything, that speaks to Steele’s honesty and reliability in providing those details to the investigators.

Finally, just as Steele came forward to share his findings with the very agency that could prove or disprove his reports, his willingness to turn them over to investigative reporters may be said to add to his credibility, not detract from it. As a careful intelligence professional, Steele also appears to have believed very genuinely and strongly in the overall information he found of a Trump-Russia conspiracy. 

One remaining element of the senators’ letter bears emphasis: The letter undercuts a key element in the narrative presented by the Nunes memo. The Nunes memo suggested that the FISA application relied on a news report by Yahoo News’ Michael Isikoff to prove the case against Page. The Grassley-Graham letter, however, suggests the Justice Department informed the court that Isikoff was using the Steele information but that the FBI believed Steele had not provided it to Isikoff “directly.” The Justice Department was likely using the Isikoff report for a different matter than corroboration, which would mean that, once again, Nunes’ memo grossly misled the public. The Democrats’ response to the Nunes memo already suggested as much in stating that the memo misrepresented the reasons why the Isikoff news story was cited in the FISA application. “This is not at all why the article was referenced,” the Minority Response of the House Intelligence Committee responded stated. In terms of undermining the Nunes memo, the senators’ letter also acknowledges that the “FBI noted to a vaguely limited extent the political origins of the dossier.”

With the release of the Graham-Grassley letter, it is now more important than ever that the Democrats’ “counter-memo,” written by the minority members of the House Intelligence Committee, be viewed by the public with as few redactions as possible. A fuller picture of the facts about whether the FBI had probable cause to spy on Page is needed to finally put these memos to bed.
 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter @rgoodlaw.