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There’s Probably Nothing The Justice Department Can Do To Stop Republicans From Releasing The Disputed FISA Memo

In a recent letter, a Justice Department official told Republican Rep. Devin Nunes it would be "extraordinarily reckless" to release the memo without a national security review. But experts say the department likely lacks any means of stopping it from happening, and Trump reportedly is supportive of its release.

Last updated on January 29, 2018, at 7:29 p.m. ET

Posted on January 29, 2018, at 5:48 p.m. ET

House Intelligence Committee Chair Devin Nunes
Jonathan Ernst / Reuters

House Intelligence Committee Chair Devin Nunes

The House Intelligence Committee voted Monday evening to move ahead with the release of a politically disputed, classified memo that alleges law enforcement abuses of US surveillance systems in the Russia investigation.

The Justice Department has opposed releasing the memo before it undergoes a national security review, but experts told BuzzFeed News that there was likely nothing the department could do to stop the release from happening.

“It strikes me as highly unlikely they could go to court,” said Robert Litt, who served as general counsel for the Director of National Intelligence from 2009 to 2017. “If there’s anything a court is going to stay away from as a political question, it’s a fight like this between two branches.”

FBI Director Christopher Wray has viewed the memo, a source familiar with the investigation told BuzzFeed News on Monday; Fox News reported that Wray saw it on Sunday. The source did not say if Wray had provided any recommendations to the House committee about the memo’s release since reading it. A Justice Department spokesman declined to comment.

A spokesman for Republican Rep. Devin Nunes, the chair of the House Intelligence Committee, did not return a request for comment.

Democratic Rep. Adam Schiff told reporters that the committee voted to release the memo on party lines and that several Democratic motions — such as having the FBI director come and brief the House about the memo before its release — were voted down.

"We raised, of course, the transparently political objective behind this, which is to allow the majority to set a certain narrative for a week or so before they release a full statement of the facts from the minority," Schiff said. "But, nonetheless, this is where we are. We have votes today to politicize the intelligence process, to prohibit the FBI from expressing concerns to the committee and to the House, and to selectively release to the public only the majority's memo without the full facts. A very sad day, I think, in the history of this committee."

The four-page memorandum, which was written by Republican intelligence committee staff, reportedly summarizes the committee’s investigation into how the Justice Department and the FBI utilized the Foreign Intelligence Surveillance Act in the course of the Russia probe — particularly the extent to which officials cited what’s known as the “Trump dossier” in asking the Foreign Intelligence Surveillance Court to approve a warrant in 2016 to monitor former Trump campaign adviser Carter Page.

The dossier was first published by BuzzFeed News last January after security officials had briefed then-president Barack Obama and Trump about it.

The New York Times reported that the memo accuses law enforcement officials involved in obtaining the warrant of failing to fully explain to the surveillance court the context and origins of the dossier. Democrats have called the memo misleading and an attempt to undermine special counsel Robert Mueller’s investigation into Russian interference in the 2016 election.

Wading into the fray last week was Assistant Attorney General Stephen Boyd, who leads the Justice Department’s Office of Legislative Affairs. In a Jan. 24 letter to Nunes first reported by ABC and obtained by BuzzFeed News, Boyd wrote that the committee’s efforts to release the memo were “unprecedented” and that he didn’t understand why members would seek to do so without consulting with the intelligence community first.

“We believe it would be extraordinarily reckless for the Committee to disclose such information publicly without giving the Department and the FBI the opportunity to review the memorandum and to advise the HPSCI of the risk of harm to national security and to ongoing investigations that could come from public release,” Boyd wrote.

The memo is classified, but House rules give the committee a way to share it with the public if members conclude “that the public interest would be served by such disclosure.” The first step is a vote by the committee. If the committee votes to release the memo, President Donald Trump then has five days to object. If Trump doesn’t object, the committee can release the memo. If Trump does object, the committee can refer the issue to the full House, which can vote to release it.

Trump favors releasing the memo and was angry about Boyd’s letter to Nunes, Bloomberg reported on Monday. Press Secretary Sarah Huckabee Sanders told reporters on Monday afternoon that no one at the White House had seen the memo yet. Sanders declined to speculate on what the president would do, although she did say that “we want full transparency.”

“Right now, we're letting the House process play out. And if and when it's time for the White House to weigh in, we'll do that through the proper protocol, making sure we follow legal process. But again, we're not to that point in the process yet,” Sanders said.

Ronald Weich, who led the DOJ Office of Legislative Affairs from 2009 to 2012 and is now dean of the University of Baltimore School of Law, said he didn’t know of any legal process that the Justice Department could use to try to get a court injunction blocking the memo’s release. Weich said he also couldn’t envision a scenario in which the Foreign Intelligence Surveillance Court could or would act on its own to prevent the memo’s release.

“House rules set out this procedure for the president to weigh in, and then it contemplates that the full House could proceed notwithstanding the president’s objections. I’m not aware of any court remedy if the House disagrees with the executive branch,” Weich said.

Weich, Litt, and other former senior Justice Department officials told BuzzFeed News that they were unaware of any previous situation when the House intelligence committee had invoked the disclosure rule at issue now.

Litt, now a partner at the law firm Morrison & Foerster, said that in the past, when the Senate and House intelligence committees wanted to release classified information, they negotiated with the intelligence community to reach an agreement on what could be shared with the public.

That was what happened with the Senate intelligence committee's report on the CIA's detention and interrogation program — a redacted version of the executive summary was released in December 2014, but the full version of what's often referred to as the "torture report" hasn't gone through a formal classification review and remains secret — and House and Senate reports on the 2012 attack on the US mission in Benghazi, Libya, he said.

Weich said that the Nunes memo put the House in “uncharted territory,” and that he found it “deeply disturbing” that the president would disagree with the judgment of Justice Department officials.

“Typically a letter of the kind the Justice Department sent last week would end the discussion,” he said.

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