Senate investigators have had problems getting the FBI to reveal information about the Trump dossier. They're not the only ones. Outside groups filing Freedom of Information Act requests are running up against a stone wall when it comes to the dossier.
On March 8, Judicial Watch filed a FOIA request for documents regarding the bureau's contacts with Christopher Steele, the former British spy who dug for dirt in Russia on candidate Donald Trump in the months before the 2016 presidential election. Steele's effort was commissioned by the oppo research firm Fusion GPS, which at the time was being paid by still-unidentified Democrats who supported Hillary Clinton. Just weeks before the election, the FBI reportedly agreed to support Steele's oppo project — an extraordinary action in the midst of a campaign which Senate Judiciary Committee Chairman Chuck Grassley said raised "questions about the FBI's independence from politics."
So Judicial Watch asked the Justice Department for:
Any and all records of communications between any official, employee, or representative of the Federal Bureau of Investigation and Mr. Christopher Steele, a former British intelligence officer and the owner of the private firm Orbis Business Intelligence.
Any and all records regarding, concerning, or related to the proposed, planned, or actual payment of any funds to Mr. Steele and/or Orbis Business Intelligence.
Any and all records produced in preparation for, during, or pursuant to any meetings or telephonic conversations between any official, employee, or representative of the Federal Bureau of Investigation and Mr. Christopher Steele and/or any employee or representative of Orbis Business Intelligence.
The idea was that the records would shed light on the basic questions regarding the dossier. Just what did the FBI do? Why? And — this is very important to Grassley — did the FBI ever use the "salacious and unverified" (the words of former FBI Director James Comey) information in the dossier as a basis for applying for warrants to put Americans under surveillance?
The Justice Department's response to Judicial Watch was simple: No. And not just no: The Department would not even confirm or deny whether any such documents or communications even existed.
So on May 16, Judicial Watch filed suit, seeking to force release of the information. In response, the department told Judicial Watch to forget about it. "Plaintiff's claims are moot," Justice lawyers wrote, "because Defendant has notified Plaintiff of its decision to neither confirm nor deny the existence of any responsive records, and the reasons for that decision."
The reasons the department referred to were contained in nearly identical letters sent to Judicial Watch on March 29 and May 16. "The nature of your request implicates records the FBI may or may not compile pursuant to its national security and foreign intelligence functions," a Justice Department FOIA official wrote. "Accordingly the FBI cannot confirm or deny the existence of any records about your subject as the mere acknowledgment of such records existence or nonexistence would in and of itself trigger harm to national security interests." The letter cited legal exemptions to FOIA based on national security.
"Moreover, as a federal law enforcement agency," the letter continued, "a confirmation by the FBI that it has or does not have responsive records would be tantamount to acknowledging the existence or nonexistence of a pending investigation it has not previously acknowledged."
The problem, of course, is that the FBI has already acknowledged the existence of a counterintelligence investigation into the Trump-Russia affair. Comey himself did it in Hill testimony on March 20, noting that it is not the Justice Department's usual practice to confirm such things, but the Trump-Russia matter was of such great public importance that Comey decided to go ahead:
As you know, our practice is not to confirm the existence of ongoing investigations, especially those investigations that involve classified matters, but in unusual circumstances where it is in the public interest, it may be appropriate to do so as Justice Department policies recognize. This is one of those circumstances.
I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government's efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia's efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.
As for the dossier itself, in public testimony before the Senate Intelligence Committee on June 8, Comey specifically discussed briefing President-elect Trump on its contents in January.
And of course, the dossier, in all its "salacious and unverified" glory, was published in full by Buzzfeed.
Finally, the Justice Department appointed Robert Mueller to serve as the special counsel in the case. The department announced the appointment publicly and released the document outlining Mueller's responsibilities.
These were not low-key, hush-hush actions. But apparently no one told the Justice Department's FOIA bureaucracy that the department and the FBI had, in a very big way, confirmed the existence of the Trump-Russia investigation.
In addition, there are indications that Mueller himself does not object to the public release of information regarding the dossier. The Senate Judiciary Committee has held so-called "deconfliction" meetings with Mueller's office in which officials discussed whether this or that aspect of the committee's investigation might interfere with Mueller's probe. (Such discussions are mostly a matter of courtesy, since the Senate can ultimately do what it wants.) It appears Mueller's office did not object to the Senate interviewing Fusion GPS chief Glenn Simpson, with the full knowledge that all or part of that interview might be publicly released. While it's not clear what Simpson told the committee — the public should hope it is released in full — given the committee chairman's concerns, it's guaranteed that Simpson was asked about Steele's interactions with the FBI.
But when it comes to the Freedom of Information Act, the FBI is resisting the release of even the most basic information. "They're fighting us on everything," Judicial Watch chief Tom Fitton told me recently. "They're fighting us tooth and nail."
Grassley and the Judiciary Committee seem determined to uncover the full story of the dossier. To do so, they'll have to use all the powers of Congress, because, when it comes to ordinary citizens, the Justice Department believes they have no right to know.