The Justice Department declined on Friday to declassify any more information from the Foreign Intelligence Surveillance Act documents related to the surveillance of former Trump campaign associate Carter Page.
Although the agency acknowledged in a court filing that one barrier to further transparency had expired, more obstacles remain following repeated pro-declassification statements from President Trump and the declassification authority he recently gave to Attorney General William Barr.
After dueling memos from Republicans and Democrats on the House Intelligence Committee in 2018, as well as Freedom of Information Act lawsuits from a number of media outlets and watchdog groups, the 412 pages of redacted Page FISA documents were released on July 21, 2018. The FISA documents were based in large part upon allegations stemming from an unverified dossier compiled by British ex-spy Christopher Steele at the behest of the opposition research firm Fusion GPS, which had been hired by Perkins Coie, the law firm for the Hillary Clinton campaign and the Democratic National Committee.
One of the groups using FOIA to fight for information on the Page FISA documents is the James Madison Project, which filed a federal lawsuit in D.C. District Court in 2017 seeking access to any FOIA documents “authorizing surveillance of President Trump, his presidential campaign, his private company, or his associates” as well as any FOIA applications for orders submitted to the Foreign Intelligence Surveillance Court.
While special counsel Robert Mueller’s investigation into Russian election interference was still ongoing, the Justice Department contended that further information from the Page FISA could not be released, citing FOIA Exemption 7(A), which indicated that releasing the Page documents “could reasonably be expected to interfere with enforcement proceedings.”
But once Mueller’s investigation ended in March and his report was released in April, the DOJ noted that it was “evaluating the impact, if any, of the conclusion of the Special Counsel’s work in this investigation on this litigation.” In May, the department said that it had “preliminarily assessed that no further disclosures are likely to be appropriate at this time” but that the government was “still evaluating, however, the extent to which Exemption (b)(7)(A) continues to apply to at least some of the withholdings.”
On Friday, the Justice Department informed the court and the James Madison Project that it had concluded its “re-review of the responsive FISA records” and determined that Exemption 7(A) has “expired as to all instances where it was cited as a basis for withholding information”, which meant that release of Page FISA information would no longer interfere with an ongoing investigation. Still, the DOJ also said that “in each instance where Exemption 7(A) was cited, one or more other FOIA Exemptions were also asserted”, which means DOJ still has other justifications to keep the blacked out sections of the Page FISA secret. The memo said that at this time there was no “additional segregable information available for release.”
In April, Trump hinted that he might be moving toward declassifying more of this information himself. In an interview, Fox News host Sean Hannity asked Trump, “Will you declassify the FISA applications, Gang of Eight material, those 302s, or, you know, what we call on this program the ‘bucket of five’?”
Trump responded, “Yes. Everything is going to be declassified and more, much more than what you just mentioned. It will all be declassified.”
When the James Madison Project reached out to the DOJ to see if Trump’s interview meant that Trump was declassifying more information, they say they were told in late April that “the Department of Justice has not received a declassification order from President Trump and that the agency is not currently conducting a new declassification review.”
In late May, Trump gave 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.”
This has reportedly caused some consternation in the intelligence community, but it has not resulted in any significant public disclosures thus far.
Trump has been promising FISA declassification action for nearly a year now. On Sept. 17, 2018, the White House 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.”
He backed away from the move a few days later. “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 investigation. 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. Speed is very important to me — and everyone!”
Despite these repeated pronouncements from Trump, nothing more has been revealed from the Page FISA documents since their redacted release nearly a year ago. Justice Department Inspector General Michael Horowitz’s investigation into alleged FISA abuse and the relationship between Steele and the FBI has been ongoing since March 2018.
