Some experts say the top Democrat on the House Intelligence Committee may have put classified information in a press release refuting parts of a “FISA abuse” memo declassified by President Trump and released Friday by committee Republicans.
Rep. Adam Schiff, D-Calif., issued specific challenges to the memo’s accuracy, citing still-classified Foreign Intelligence Surveillance Court filings.
“The Republican document mischaracterizes highly sensitive classified information that few Members of Congress have seen, and which Chairman Nunes himself chose not to review,” Schiff said.
The GOP memo says former British spy Christopher Steele’s political opposition research formed the basis for surveillance of former Trump adviser Carter Page. A still-classified Democratic rebuttal memo has not been released.
Schiff cited two specific examples of alleged inaccuracies in the Republican memo, citing his knowledge of the secret court filings.
“The Majority suggests that the FBI failed to alert the court as to Mr. Steele’s potential political motivations or the political motivations of those who hired him, but this is not accurate,” Schiff said. “The GOP memo also claims that a Yahoo News article was used to corroborate Steele, but this is not at all why the article was referenced."
Steven Aftergood, director of the government secrecy project at the Federation of American Scientists, said it’s possible those refutations reveal classified information.
“In the abstract they could be problematic since they go beyond the official public record” in describing classified documents, he said. “But under current circumstances, it is hard for me to imagine anyone objecting.”
Indeed, members of Congress have immunity from prosecution to release classified information — though they rarely do so, due to institutional pressure — under the Constitution’s Speech or Debate Clause.
Mark Zaid, an attorney who has worked many national defense cases dealing with the handling of classified information, also said it’s possible the Schiff release reveals classified information.
“At first blush I would have some concerns about the details in this statement as to whether it crosses a classification line, but it is possible Rep. Schiff, having had access to the underlying classified information, knows these points are in unclassified paragraphs,” Zaid said. “So much of these back and forths about the memo are in a gray area on classification.”
Zaid said “it's not ok to summarize classified info,” but that he doesn’t believe the two specific refutations cross the line into revealing classified information He said he’s more interested in a different paragraph in Schiff’s statement addressing why the Justice Department referenced ex-Trump adviser George Papadopoulos in its Page filings. That paragraph said:
“The DOJ appropriately provided the court with a comprehensive explanation of Russia’s election interference, including evidence that Russian agents courted another Trump campaign foreign adviser, George Papadopoulos. As we know from Papadopoulos’ guilty plea, Russian agents disclosed to Papadopoulos their possession of stolen Clinton emails and interest in a relationship with the campaign. In claiming that there is ‘no evidence of any cooperation or conspiracy between Page and Papadopoulos,’ the Majority deliberately misstates the reason why DOJ specifically explained Russia’s role in courting Papadopoulos and the context in which to evaluate Russian approaches to Page.”
Zaid said “it is possible they are drawing info from other sources, particularly news reporting, that isn't classified” but that it’s “really hard to tell [the] origins.”
A spokesman for Schiff did not immediately respond to a request for comment.
Robert Litt, the top lawyer for the U.S. intelligence community from 2009 to 2017 as general counsel in the Office of the Director of National Intelligence, said he does not believe Schiff released classified information.
“I guess it is hard for me to wrap my mind around the concept that, if it’s not classified to say, ‘The FBI didn’t tell the FISA Court about Steele’s bias,’ it’s classified to say, ‘That’s false’,” Litt said.
“I don’t think that you could release what was actually in the [still-classified court] filing. But you could say that what [House Intelligence Committee Chairman Devin] Nunes says is wrong,” Litt said.
“Schiff didn’t say what the FISA application said – he said only that what Nunes said isn’t what the application said,” Litt said. “If he had gone further and said what the FISA application said, or if he had been talking about different statements in the Nunes memo such that his response would necessarily reveal what the application actually said, it might be different.”
Litt said “I don’t think you can draw a hard and fast line” on whether summarizing classified documents breaches the classification protections for information they contain. “It depends on the circumstances. I could see circumstances where you might be violating classification like that. But not in this case,” he said.