The fight over the release of a classified memo alleging FBI misconduct has set up a potentially bitter clash between President Trump and the Justice Department.
Assistant Attorney General Stephen Boyd — a Trump appointee — wrote in a letter to House Intelligence Committee Chairman Devin Nunes (R-Calif.) that releasing the memo publicly would be “extraordinarily reckless” and endanger national security.
If the Intelligence Committee votes to release the four-page memo, which could happen early as early as next week, Trump would have an opportunity to veto the decision.
But the White House has signaled tacit support for the move and it’s widely expected that the president, who has previously claimed that the Obama administration “wiretapped” his campaign, will permit the release of the document.
Allowing the committee’s memo to become public unimpeded would be a slap in the face to the Department of Justice at a time when Trump’s efforts to influence its activity are under intense scrutiny.
Special counsel Robert Mueller is believed to be homing in on whether Trump obstructed justice by “fighting back” against the investigation into his campaign’s ties to Russia. Meanwhile, a recent drumbeat of headlines have highlighted interactions between the president and Justice officials considered an unusual breach of the historical firewall between the department and the White House.
The stakes are just as high for Nunes, who has faced allegations from Democrats of ginning up the controversy over “unmasking” to provide cover for Trump’s wiretapping claims. The memo, they say, is part of a broad partisan effort to discredit the FBI, and by extension, Mueller.
The committee voted on party lines last week to make the memo, drafted by Nunes and his staff, available to the entire House. At least publicly, Nunes has not committed to a vote on making the document available to the public.
But backing away would carry its own set of political risks for the embattled chairman. Conservatives are clamoring for the release of the memo, calls that escalated after the news that the FBI lost five months of text messages between a pair of FBI employees once assigned to the investigation into the Trump campaign.
The bureau blamed a technical glitch and the Justice Department inspector general has since recovered the missing texts using forensic tools. {mosads}
The precise contents of the memo remain unknown, but it is believed to contain allegations that the FBI did not adequately explain to a clandestine court that some of the information it used in a surveillance warrant application for Trump adviser Carter Page was opposition research funded by the Clinton campaign, now known as the “Steele dossier.”
Foreign Intelligence Surveillance Act (FISA) warrants are highly classified — even the existence of a given warrant is classified — and Boyd in his letter warned Nunes that the reported allegations in the memo would be based on information that “neither you nor most of [the committee have] seen.”
The Justice Department, which has not been allowed to see the memo, expressed concerns common to the exposure of any classified information: that its public release will damage ongoing investigations and harm national security by burning sources and laying bare intelligence community capabilities.
“Indeed, we do not understand why the committee would possibly seek to disclose classified and law enforcement sensitive information without first consulting with the relevant members of the Intelligence Community,” Boyd wrote.
Several Republicans on the Senate Intelligence Committee, including Republican Whip John Cornyn (R-Texas) have suggested that Nunes should allow the department to weigh in on the release of the document.
Nunes would be relying on an obscure House rule that has never before been used to override the classification system. If the committee votes to make the memo public, the president would have five days to block its release. And even if he did block the release, the full House could override him in a floor vote.
But the release of the memo could provide fuel for Trump’s claims that his transition was inappropriately spied on by the Obama administration — as well as back up his assertion that the FBI’s reputation is “in tatters”— and it remains unclear if he will back his own Justice Department.
Some Republicans who have viewed the memo have hinted heavily that it contains the key to unraveling the entire Mueller investigation, long described by the president as a “witch hunt.”
“We certainly support full transparency and we believe it’s at the House Intel Committee to make that decision at this point,” press secretary Sarah Huckabee Sanders said this week.
A spokesman for Nunes said Thursday that the committee has not briefed the White House on the contents of the memo.
The Justice Department is not “currently aware of any wrongdoing relating to the FISA process,” according to Boyd.
While Nunes has described the memo as “facts,” Democrats have slammed it as a collection of misleading talking points they are unable to correct without exposing the highly classified information underpinning the document.
Boyd suggested that the Justice Department is in a similar position. “We assume members want to provide evidence of any specific allegation of misconduct to Department officials so that we may take appropriate action,” he wrote.
Lawmakers say the underlying intelligence justifying the memo’s allegations is so sensitive that only eight members of Congress are able to view it. Nunes and ranking member Adam Schiff (D-Calif.) are two of the eight figures, but the other members of the Intelligence Committee are not. The top two lawmakers on the Senate Intelligence Committee are also part of the so-called Gang of Eight, but while they have access to the underlying intelligence, Nunes has denied committee requests to see the memo.
“Seeking Committee approval of public release would require [House Permanent Select Committee on Intelligence] committee members to vote on a staff-drafted memorandum that purports to be based on classified source materials that neither you nor most of them have seen,” Boyd told Nunes.
Nunes has brushed aside the notion that the memo would be unpersuasive without the underlying intelligence to substantiate its claims, calling the argument Democratic obstruction of his investigation into Justice Department misconduct.
But a working group, including Nunes, House Oversight and Government Reform Committee Chairman Trey Gowdy (R-S.C.) and Judiciary Committee chairman Bob Goodlatte (R-Va.), met over the weekend to discuss the possibility of making some of the underlying information public. Nunes has “a plan,” according to committee member Mike Conaway (R-Texas), who provided no further details.
The memo is a committee work product and the responsibility for releasing it, or not, rests with Congress. The underlying intelligence, however, belongs to the executive branch and Trump could unilaterally make it public if he wished.
“I haven’t had that conversation with the president,” Sanders said earlier this week. “Right now, it’s going through the process with the House Intel committee. We feel like they should play that role at this point, and if it doesn’t happen we can address it at this point.”
According to Gowdy, who helped draft the memo, “everything” in it is based on documents provided to the committee by the FBI.
A spokesman for the Justice Department declined to comment when asked if officials had expressed Boyd’s concerns to the White House.