A federal judge shut down an effort to further declassify information from Foreign Intelligence Surveillance Act filings related to onetime Trump campaign associate Carter Page.
Amit Mehta, the judge for the U.S. District Court in Washington, D.C., agreed with the Justice Department that President Trump’s tweets and a White House news release didn’t constitute declassification orders.
The Freedom of Information Act lawsuit was filed in 2017 by investigative journalist Brad Heath, formerly of USA Today and now of Reuters, and the James Madison Project, and 412 pages of heavily redacted Page FISA documents were released as a result of it in June 2018.
The plaintiffs sought further FISA disclosures, including asking for 21 additional pages to be unredacted.
Trump promised FISA declassification action for a long time, and in September 2018, a White House press release said that Trump was directing his agencies to “provide for the immediate declassification” of a number of materials, including “pages 10-12 and 17-34 of the June 2017 application to the FISA court in the matter of Carter W. Page” and “all FBI reports of interviews prepared in connection with all Carter Page FISA applications.”
The plaintiffs in the FOIA case contended that the press release reflected a presidential order to declassify the pages they were seeking. The Justice Department disagreed, arguing that the message came from then-White House press secretary Sarah Sanders and that Trump’s subsequent tweets were clear enough to rescind any prior request.
Associate Deputy Attorney G. Bradley Weinsheimer submitted a declaration to the court in August 2019 arguing that “DOJ did not receive at any time a declassification order related to the materials remaining at issue in this case” and, after consulting with the White House following its press release, “DOJ was informed that there was no order requiring immediate declassification or disclosure of those documents.”
Mehta sided with Trump’s Justice Department.
“Plaintiffs assume that the Press Release is, in fact, as a declassification order and that it is Defendant’s job to prove otherwise, or alternatively, to prove that the order was rescinded,” the judge ruled on Tuesday. “DOJ’s declaration now makes clear that the Press Release was not a declassification order. Plaintiffs’ protestations to the contrary, which lack any evidentiary support, therefore ring hollow.”
Bradley Moss, an attorney for the James Madison Project, told the Washington Examiner that “this ruling is reflective of the chaotic mess the president’s unorthodox tweeting and actions cause, and the struggles DOJ continues to endure trying to translate that chaos into something similar to standard government processes.”
“We disagree with the court’s analysis of the impact of the president’s actions and are evaluating options,” Moss said.
Trump caused some confusion in September 2018 when he appeared to walk back the White House press release partially.
“I met with the DOJ concerning the declassification of various UNREDACTED documents. They agreed to release them but stated that so doing may have a perceived negative impact on the Russia probe. Also, key Allies’ called to ask not to release,” Trump tweeted. “Therefore, the Inspector General has been asked to review these documents on an expedited basis. I believe he will move quickly on this (and hopefully other things which he is looking at). In the end I can always declassify if it proves necessary.”
In early January, Moss told the court they wanted access to more than just the 21 redacted FISA pages, stating that “the issue of the redactions and/or withholdings in the remaining 391 pages from the Page FISA warrants also remain unresolved.”
Here too, the judge rebuffed the James Madison Project.
“Plaintiffs never sought to disabuse the court of the notion that the ‘sole contested issue’ pertained to redaction of the [21] Pages — until now,” Mehta ruled. “They chose instead to contest only one discrete issue. Plaintiffs cannot now revive what they long ago abandoned.”
DOJ Inspector General Michael Horowitz released a report in December that criticized the Justice Department and the FBI for at least 17 “significant errors and omissions” related to the FISA surveillance of Page, who was never charged with wrongdoing, and for its heavy reliance on British ex-spy Christopher Steele’s salacious and unverified dossier.
Steele put his research together in 2016 at the behest of the opposition research firm Fusion GPS, which had been hired by the Hillary Clinton campaign and the Democratic National Committee through the Perkins Coie law firm.
The Justice Department has since said that at least the final two of four Page FISA warrants were “not valid” and the FBI sought to “sequester” the information gleaned from that surveillance. The Justice Department told the court that at least some of the information redacted within the 21 pages of the Page FISA filings had been revealed in Horowitz’s report.
In April, Trump hinted that he might be moving toward declassifying more of this information himself. And in late May, Trump gave Attorney General William Barr “full and complete authority to declassify information” related to the origins of the federal investigation into possible ties between the Trump campaign and Russia, and he “directed the intelligence community to quickly and fully cooperate with the Attorney General’s investigation.” Barr selected U.S. Attorney John Durham as his right-hand man in this endeavor.
Neither Trump nor Barr has formally moved to declassify more information from the Page FISA filings.
