There's been a lot of confusion about the decision by Senate Judiciary Committee chairman Chuck Grassley and crime subcommittee chairman Lindsey Graham to refer Christopher Steele, author of the Trump dossier, to the Justice Department for a possible criminal investigation.
The two senators sent a brief letter Thursday to deputy attorney general Rod Rosenstein and FBI director Christopher Wray. The letter, which was unclassified and released to the public Friday, was a cover letter for what Grassley and Graham called a "classified memorandum related to certain communications between Christopher Steele and multiple U.S. news outlets regarding the so-called 'Trump dossier' that Mr. Steele compiled on behalf of Fusion GPS for the Clinton campaign and the Democratic National Committee and also provided to the FBI."
Grassley and Graham said that, on the basis of the classified information laid out in the memo, "we are respectfully referring Mr. Steele to you for investigation of 18 U.S.C. 1001, for statements the committee has reason to believe Mr. Steele made regarding his distribution of information contained in the dossier." (18 U.S.C. 1001 is the same federal false statements law that special counsel Robert Mueller has used to charge Michael Flynn and George Papadopoulos in the Trump-Russia investigation.)
That's all Grassley and Graham said, or at least all they said that was released to the public. The classified memo, of course, was not released at all.
It was all very confusing. What did the letter mean? Were Grassley and Graham alleging that Steele lied to the Senate Judiciary Committee? To some other congressional committee? To other investigators? If so, to whom?
The move met with skepticism in a number of circles. Sen. Dianne Feinstein, ranking Democrat on the Judiciary Committee, called it an "effort to deflect attention" from the Trump-Russia probe. A former prosecutor called it "nonsense" in an interview with the Washington Post. A law professor speculated that it was "baseless."
At the same time, few outside the committee seemed to understand what the letter meant. So, here is what appears to be going on:
Steele has not talked to any of the three congressional committees investigating the Trump-Russia affair – the Senate Judiciary Committee, the Senate Intelligence Committee, or the House Intelligence Committee. Steele did not make false statements to them because he has not made any statements to them.
Steele has, reportedly, talked to Mueller's prosecutors, but it seems highly unlikely Grassley and Graham are suggesting Steele lied to Mueller because it is highly unlikely – actually, beyond highly unlikely – that the Mueller office would have shared any of Steele's answers with the Senate Judiciary Committee. So, what were Grassley and Graham referring to in their letter? What are the "statements the committee has reason to believe Mr. Steele made" that Grassley and Graham believe might be false?
The answer is that Steele talked – and talked a lot – to the FBI. Remember that when he began to compile the dossier in the summer of 2016, Steele reportedly concluded the sensational information he had picked up – allegations of election collusion and Trump sexual escapades in Russia – was so important that he had to take it to the FBI. Steele told the left-leaning magazine Mother Jones that he first took the material to the FBI "near the start of July."
That began a series of communications between Steele and the bureau in which Steele made certain representations to the FBI about his work. It is a crime to make false statements to the FBI – doesn't have to be under oath, doesn't have to be in a formal interview or interrogation setting, it's simply a criminal act to knowingly make a false statement to the FBI.
As a result of their talks, Steele and the FBI reached a tentative agreement whereby the FBI would pay Steele to continue the anti-Trump work.
All the while, Steele was also working for the opposition research firm Fusion GPS – his dossier was the result of a Fusion anti-Trump project funded by the Clinton campaign. As part of that, Steele briefed reporters on what he had found. In a London court case, Steele's lawyers said that in September 2016, Fusion GPS directed Steele to brief reporters from the New York Times, the Washington Post, CNN, the New Yorker, Yahoo News, and, later, Mother Jones. Steele did each briefing individually.
One serious question is whether Steele told the FBI that he was telling reporters the same information – those explosive allegations about Trump and Trump associates – that he was bringing to bureau investigators. If the FBI knew that, would they have agreed to an arrangement to make Steele a paid FBI operative investigating the Trump-Russia affair? That would have been a most unorthodox arrangement, with Steele disseminating his allegations to the FBI and the press simultaneously.
That is not exactly how the FBI operates. So now the question is: When Steele was discussing working for the FBI, did he fully inform the FBI of what his work for the Clinton campaign involved, in particular his briefing the press on the findings he would be reporting to the FBI? To use Grassley's and Graham's words, were the "statements the committee has reason to believe Mr. Steele made regarding his distribution of information contained in the dossier" accurate?
One way to find that out is to compare what Steele told the London court with what Steele told the FBI. Some of the London court testimony is public. As for what Steele told the FBI, the Senate Judiciary Committee has examined a lot of dossier-related material from the FBI under an agreement that allows the committee to view materials the bureau has originally produced to the House Intelligence Committee.
It appears that Grassley and Graham are pursuing inconsistencies between what Steele told the FBI and what Steele told the London court. If they conflict, which is true? If what Steele told the FBI was untrue, that's a problem.
Ultimately, the Steele-FBI deal fell through, for reasons that have never been publicly disclosed.
But there has been much speculation that the FBI used information from the uncorroborated dossier to seek court permission to spy on Americans in the Trump-Russia investigation. That would be a big deal, and it is an issue House and Senate Republicans are determined to sort out.
"I don't take lightly making a referral for criminal investigation," Grassley said in a statement Friday. "But, as I would with any credible evidence of a crime unearthed in the course of our investigations, I feel obliged to pass that information along to the Justice Department for appropriate review. Everyone needs to follow the law and be truthful in their interactions with the FBI."
"Maybe there is some innocent explanation for the inconsistencies we have seen," Grassley continued, "but it seems unlikely."