A federal judge ruled Tuesday that President Trump’s declassification order from last September regarding the Foreign Intelligence Surveillance Act applications and warrants targeting Trump associate Carter Page — and follow-up tweets from Trump that added confusion to his prior position — were ambiguous enough that the Justice Department should provide more answers.
Additionally, the judge ruled that the Freedom of Information Act lawsuit seeking further FISA disclosures should move forward.
The FOIA case was launched by USA Today legal reporter Brad Heath and the James Madison Project back in 2017, and 412 pages of heavily redacted Carter 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 redacted. And the clash with Justice Department attorneys, who are trying to prevent the release of any more information, got more interesting as Trump weighed in further.
Trump has promised action on further FISA declassification for nearly a year now. The White House issued a news release last September stating that Trump ordered the immediate declassification of the documents, including parts of a June 2017 FISA court application about Carter Page and all FBI reports of interviews in connection with the Page surveillance applications. Trump also ordered the release of all text messages about the Russia investigation by former FBI Director James Comey, former FBI Deputy Director Andrew McCabe, former FBI agent Peter Strzok, former FBI attorney Lisa Page, with whom Strzok was having an affair, and former Justice Department official Bruce Ohr.
But Trump muddled things on Twitter a bit 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 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.”
The plaintiffs in the FOIA case contended that the press release reflected a presidential order to declassify the 21 pages they were seeking. The Justice Department disagreed, claiming it came from press secretary Sarah Sanders and that Trump’s tweets were clear enough to rescind any prior request anyway.
“There is no presidential declassification order,” government lawyers said in court filings. “And the President has publicly indicated that he is not requiring declassification at this time.”
Judge Amit Mehta, who is presiding over the case in the U.S. District Court of D.C., rejected those arguments.
The judge said the press release from the White House clearly stated that Trump “directed” disclosure and thus it could not be ignored as mere suggestion. “The court cannot presume that the President’s declassification order was meant to have no practical effect,” Mehta said.
Second, the judge rejected the idea that Trump’s follow-up tweet meant the Justice Department was now off the hook.
“The tweet only injects ambiguity as to the President’s intentions,” Mehta said. “The tweet does not identify the documents to which the President is referring, let alone refer to the pages, and it leaves unclear whether the President rescinded the directive announced in the press release.”
Mehta also noted that the government’s claims relied on legal arguments instead of any sworn statements.
Mehta gave the Justice Department an Aug. 30 deadline to provide answers on how the press release and the president’s tweets affected the documents’ classification status and asked for more details on why the Justice Department thinks it is authorized to continue asserting exemptions.
The partially redacted FISA documents already released showed that the Justice Department and the FBI made extensive use of information in British ex-spy Christopher Steele’s dossier, which made salacious and unverified allegations regarding Trump and Russia. Steele put his research together in 2016 at the behest of the opposition research firm Fusion GPS, which had been hired by the Clinton campaign through the Perkins Coie law firm.
DOJ Inspector General Michael Horowitz launched an inquiry in March 2018 into alleged abuse of the FISA Court process, including the FBI’s use of the Steele dossier. Horowitz’s investigation has reportedly concluded, and his report is expected after Labor Day.
Trump also 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 Barr selected U.S. Attorney John Durham as his right-hand man in this endeavor. The White House instructed agencies like the Central Intelligence Agency, the Defense Department, the State Department, the Office of the Director of National Intelligence to cooperate with Barr and Durham in their efforts.
