UNITED STATES
FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, D.C.

IN RE ORDERS AND RECORDS OF THIS
COURT RELATED TO THE
SURVEILLANCE OF CARTER PAGE

No. Misc. 18–_______

MOTION OF ADAM GOLDMAN, CHARLIE SAVAGE, AND
THE NEW YORK TIMES COMPANY FOR PUBLICATION OF COURT RECORDS

David E. McCraw
Vice President & Assistant General Counsel
THE NEW YORK TIMES COMPANY
620 Eighth Avenue
New York, NY 10018
Phone: 212-556-4031
Fax: 212-556-1009
Christina Koningisor
THE NEW YORK TIMES COMPANY
Legal Department
620 Eighth Avenue
New York, NY 10018
Phone: (212) 556-1985
Fax: (212) 556-4634
Email: christina.koningisor@nytimes.com

David A. Schulz
MEDIA FREEDOM & INFORMATION
ACCESS CLINIC
ABRAMS INSTITUTE
1675 Broadway, 19th Floor
New York, NY 10019
Phone: (212) 850-6103
Email: schulzd@ballardspahr.com
John Langford
Hannah Bloch-Wehba
MEDIA FREEDOM & INFORMATION
ACCESS CLINIC
ABRAMS INSTITUTE
Yale Law School
P.O. Box 208215
New Haven, CT 06520
Phone: (203) 436-5831
Fax: (203) 432-3034
Email: john.langford@ylsclinics.org

 TABLE OF CONTENTS
PRELIMINARY STATEMENT ................................................................................................. 1
JURISDICTION ......................................................................................................................... 6
ARGUMENT.............................................................................................................................. 7
I. THIS COURT MAY CONSIDER MOVANTS’ REQUEST FOR PUBLICATION......... 7
II. THERE IS NO LONGER ANY REASON FOR THE PAGE WARRANT ORDERS
AND APPLICATION MATERIALS TO BE WITHHELD IN THEIR ENTIRETY AND
DISCLOSURE WOULD SERVE THE PUBLIC INTEREST ......................................... 8
CONCLUSION......................................................................................................................... 11

i

 PRELIMINARY STATEMENT
Pursuant to Rule 62 of this Court’s Rules of Procedure, reporters Adam Goldman and
Charlie Savage and The New York Times Company (“Movants”) move the Foreign Intelligence
Surveillance Court (“FISC”) to order publication of all of its orders authorizing surveillance of
Carter Page, a United States citizen, together with the application materials and renewal
application materials upon which those orders were issued.
On February 2, 2018, President Trump declassified a memorandum authored under the
direction of Rep. Devin Nunes, Chair of the House Permanent Select Committee on Intelligence
(“HPSCI”) concerning the surveillance of Mr. Page, who had served briefly as a foreign affairs
advisor to the Trump Campaign in 2016. The Nunes Memorandum disclosed the existence of
multiple orders issued by this Court authorizing surveillance of Mr. Page after his departure from
the Trump campaign, and purported to detail the facts upon which those orders were issued.
Following the presidential declassification, it was promptly released to the public by HPSCI.
Even before release of the Nunes Memorandum, speculation about the surveillance of
Carter Page had been at the center of heated national debates over potential abuses of the
government’s surveillance authority under the Foreign Intelligence Surveillance Act, as well as
the provenance and propriety of an ongoing investigation by Special Counsel Robert Mueller
into potential collusion between the Trump Campaign and the government of Russia during the
2016 Presidential Election. The now-public Nunes Memorandum was prepared solely by
Republican members of the HPSCI. Its release over the strenuous objections of the Democratic
members of that Committee, the Department of Justice and the Federal Bureau of Investigation
has fueled a further intense debate over the validity of the memorandum’s depiction of the
factual basis and motivation for the surveillance of Mr. Page.

 Given the overwhelming public interest in assessing the accuracy of the Nunes
Memorandum and knowing the actual basis for the Page surveillance orders, Movants
respectfully request this Court to direct the publication of its orders authorizing the surveillance
of Mr. Page and the application materials upon which they were issued, with only such limited
redactions as may be essential to preserve information that remains properly classified
notwithstanding the declassification and dissemination of the Nunes Memorandum.
BACKGROUND
A. Electronic Surveillance Under the Foreign Intelligence Surveillance Act
The Foreign Intelligence Surveillance Act (“FISA”) requires the government to obtain a
warrant from the FISC before it may conduct domestic electronic surveillance to acquire foreign
intelligence information. 50 U.S.C. § 1802.1 To obtain a warrant, the government must submit a
warrant application to the FISC. Id. § 1804(a). The application must include a sworn statement
by a federal officer of the facts and circumstances relied upon to justify the government’s belief
that the target of surveillance is a foreign power or an agent of a foreign power. Id. § 1804(a)(3).
Upon receiving a warrant application, a FISC judge can enter an order approving
surveillance only if the judge finds that there is probable cause to believe that the target of the
electronic surveillance is a foreign power or an agent of a foreign power. Id. § 1805(a)(2). The
order may only authorize surveillance for up to ninety days. Id. § 1805(d)(1). If the government
wishes to continue surveillance beyond ninety days, it must file an application for an extension
that meets the same requirements as the initial warrant application and obtain a renewal order
from the FISC. Id. § 1805(d)(2).

1

FISA provides three narrow exceptions to the warrant requirement for electronic
surveillance, none of which are relevant here. See 50 U.S.C. §§ 1802(a), 1805(f), 1811.
2

 Typically, the public never learns of the existence or contents of a specific FISA warrant
or any related materials. Warrant applications are made ex parte; FISC orders authorizing
surveillance are entered ex parte; and the entire record of FISC proceedings, including warrant
applications and related orders, are classified and maintained under security measures. See id. §§
1803(c), 1805(a). It is highly unusual for the public to learn of the existence of a specific FISA
warrant as has occurred here.
B. Declassification of the Existence of the Carter Page FISA Warrant and the Contents of
the Initial Warrant Application and Renewal Applications
On January 29, 2018, the House Permanent Select Committee on Intelligence voted to
disclose a memorandum (the “Nunes Memo”) revealing the existence of a FISA warrant for the
electronic surveillance of Carter Page, who served as a foreign policy advisor to the Trump
Campaign until September 2016.2 Under Rule X of the House of Representatives, the President
had five days to object to the Nunes Memo’s disclosure. Instead, President Trump declassified
the Nunes Memo on February 2, 2018. Langford Decl. Ex. A.
The Nunes Memo reveals that on October 21, 2016, the Department of Justice (“DOJ”)
and Federal Bureau of Intelligence (“FBI”) “sought and received a FISA probable cause order . .
. authorizing electronic surveillance on Carter Page from the FISC.” Id. at 3. The FBI and DOJ
subsequently applied for and received three FISA renewals from the FISC, extending the
surveillance of Page. Id.

2

See Nicholas Fandos, House Republicans Vote to Release Secret Memo On Russia Inquiry,
N.Y. Times (Jan. 29, 2018), https://www.nytimes.com/2018/01/29/us/politics/release-the-memovote-house-intelligence-republicans.html; Charlie Savage & Sharon LaFraniere, Republicans
Claim Surveillance Power Abuses in Russia Inquiry, N.Y. Times (Jan. 19, 2018),
https://www.nytimes.com/2018/01/19/us/politics/republicans-surveillance-trump-russiainquiry.html.
3

 The Nunes Memo discloses that the initial warrant application and two renewal
applications were signed by then-Director James Comey on behalf of the FBI; a final renewal
application was signed by Deputy Director Andrew McCabe. Id. For the DOJ, former-Deputy
Attorney General Sally Yates, former-Acting Deputy Attorney General Dana Boente, and
Deputy Attorney General Rod Rosenstein each signed one or more of the FISA warrant
applications. Id.
The Nunes Memo further discloses some of the content of the applications, as well as
certain purported omissions it identifies:
•

“[t]he ‘dossier’ compiled by Christopher Steele . . . on behalf of the Democratic
National Committee (DNC) and the Hillary Clinton campaign formed an essential
part of the Carter Page FISA application”;3

•

“[n]either the initial application in October 2016, nor any of the renewals, disclose or
reference the role of the DNC, Clinton Campaign, or any party/campaign in funding
Steele’s efforts”;

•

“[t]he initial FISA application notes [Christopher] Steele was working for a named
U.S. Person, but does not name Fusion GPS and principal Glenn Simpson”;

•

“[t]he [initial] application does not mention Steele was ultimately working on behalf
of—and paid by—the Clinton campaign, or that the FBI had separately authorized
payment to Steele for the same information”;

•

“[t]he Carter Page FISA application . . . cited extensively a September 23, 2016,
Yahoo News article by Michael Isikoff, which focuses on Page’s July 2016 trip to
Moscow”;

•

“[t]he Page FISA application . . . assesses that Steele did not directly provide
information to Yahoo News”;

•

none of the Page FISA applications reference that, in September 2016, Steele
reportedly told then-Associate Deputy Attorney General Bruce Ohr that he “was
desperate that Donald Trump not get elected and was passionate about him not being
president”;

3

Notably, the Steele dossier is publically available: https://www.documentcloud.org/
documents/3259984-Trump-Intelligence-Allegations.html.
4

 •

none of the applications reference Ohr’s relationship with Steele and Fusion GPS,
including that Ohr’s wife was employed by Fusion GPS;

•

“the FISA application relied on Steele’s past record of credible reporting on other
unrelated matters,” but did not disclose Steele’s reported “anti-Trump financial and
ideological motivations”; and

•

“[t]he Page FISA application . . . mentions information regarding fellow Trump
campaign advisor George Papadopoulos.”

Id. at 4–6.
C. Reaction to Disclosure of the Nunes Memo
The Nunes Memo’s release has precipitated a national debate on FISA, the role of the
FISC, and the potential for the government to abuse its surveillance authority.4 It has also further
fueled the debate over the propriety of Special Counsel Robert Mueller’s investigation into
collusion between the Trump Campaign and Russia during the 2016 Presidential Election.5
Publication of the Nunes Memo has additionally sparked an intense debate over the
accuracy of its characterization of the Page warrant applications. Notably, Democrats on the
HPSCI have authored a 10-page memorandum responding to the Nunes Memo, which remains

4

See, e.g., Charlie Savage, How to Get a Wiretap to Spy on Americans, and Why That
Matters Now, N.Y. Times (Jan. 29, 2018), https://www.nytimes.com/2018/01/29/us/politics/fisasurveillance-applications-how-they-work.html; James Freeman, Opinion, Obama and the FISA
Court: Both of Their Reputations Cannot Survive the Collusion Investigation, Wall St. J. (Feb. 2,
2018), https://www.wsj.com/articles/obama-and-the-fisa-court-1517608555; Jim Geraghty, The
FBI’s Least Defensible Decision, As Revealed in the Nunes Memo, Nat’l Rev. (Feb. 2, 2018),
http://www.nationalreview.com/corner/456054/fbis-least-defensible-decision-revealed-nunesmemo.
5

See, e.g., Byron Tau & Rebecca Ballhaus, Memo’s Release Escalates Clash Over Russia
Probe; Trump Says It ‘Totally Vindicates’ Him, Wall St. J. (Feb. 3, 2018),
https://www.wsj.com/articles/house-releases-gop-surveillance-memo-1517592392; Matthew
Nussbaum, How the Nunes Memo Became The Latest Political Football in the Russia
Investigation, Politico (Feb. 1, 2018), https://www.politico.com/story/2018/02/01/nunes-memofbi-russia-investigation-383172; Noah Bookbinder et al., Nunes Memo Aims at Russia probe,
Backfires on Trump and GOP, USA Today (Feb. 3, 2018), https://www.usatoday.com/story/
opinion/2018/02/03/nunes-memo-aims-russia-probe-backfires-trump-and-gop-bookbinder-eisenfredrickson-column/303240002/.
5

 classified.6 The Democrats’ memorandum reportedly rebuts the Nunes Memo’s contention that
the FISC was not told of Steele’s political motivations. 7 In addition, sources report that the FBI
did tell this Court that the information it received from Steele was politically motivated, though
the agency did not say it was financed by Democrats.8 The Justice Department reportedly made
“ample disclosure of relevant, material facts” to the Court that revealed “the research was being
paid for by a political entity,” according to an unnamed official familiar with the matter.9 None
of the accusations in the Nunes Memo nor the denials by knowledgeable sources can be
confirmed without access to the records of this Court whose release is now requested by
Movants.
JURISDICTION
As an inferior federal court established by Congress under Article III, this Court
possesses inherent powers, including “supervisory power over its own records and files.” Nixon
v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978); accord Chambers v. NASCO, Inc., 501
U.S. 32, 43 (1991) (“It has long been understood that [c]ertain implied powers must necessarily
result to our Courts of justice from the nature of their institution.” (quotation marks omitted)).10

6

Nicholas Fandos, Adam Goldman & Charlie Savage, House Republicans Release Secret
Memo Accusing Russia Investigators of Bias, N.Y. Times (Feb. 2, 2018),
https://www.nytimes.com/2018/02/02/us/politics/trump-fbi-memo.html.
7

Id.

8

Id.

9

Ellen Nakashima, Justice Department Told Court of Source’s Political Influence in Request
to Wiretap Ex-Trump Campaign Aide, Officials Say, Wash. Post. (Feb. 2, 2018),
https://www.washingtonpost.com/world/national-security/justice-dept-told-court-of-sourcespolitical-bias-in-request-to-wiretap-ex-trump-campaign-aide-officials-say/2018/02/02/caecfa860852-11e8-8777-2a059f168dd2_story.html.

6

 In addition, FISA specifically grants this Court power to “establish such rules and procedures,
and take such actions, as are reasonably necessary to administer their responsibilities” under the
statute. 50 U.S.C. § 1803(g)(1). Pursuant to that authority, this Court has issued Rules of
Procedure permitting FISC judges to direct the publication of FISC orders, opinions, and “related
record[s]” “sua sponte or on a motion by a party.” FISC Rule of Procedure 62.
ARGUMENT
I.

THIS COURT MAY CONSIDER MOVANTS’ REQUEST FOR PUBLICATION
FISC Rule of Procedure 62 permits this Court to publish any of its orders and related

records. The Court has discretion to direct publication of its records sua sponte or on motion by
a party:
Rule 62. Release of Court Records.
(a) Publication of Opinions. The Judge who authored an
order, opinion, or other decision may sua sponte or on
motion by a party request that it be published. Upon such
request, the Presiding Judge, after consulting with other
Judges of the Court, may direct that an order, opinion or
other decision be published. Before publication, the Court
may, as appropriate, direct the Executive Branch to review
the order, opinion, or other decision and redact it as
necessary to ensure that properly classified information is
appropriately protected pursuant to Executive Order 13526
(or its successor).
(b) Other Records. Except when an order, opinion, or
other decision is published or provided to a party upon
issuance, the Clerk may not release it, or other related
record, without a Court order. Such records must be
released in conformance with the security measures
referenced in Rule 3.
FISC Rule of Procedure 62(a)-(b).

10

For this reason, the FISC therefore has “jurisdiction in the first instance to adjudicate a
claim of right to the court’s very own records and files.” In re Motion for Release of Court
Records, 526 F. Supp. 2d 484, 487 (FISC 2007).
7

 As this Court has explained, a decision to order publication under FISC Rule 62 lies
within the discretion of the Court. In re Opinions and Orders of This Court Addressing Bulk
Collection of Data Under the Foreign Intelligence Surveillance Act, No. 13-08 (Foreign Intel.
Surv. Ct. Nov. 9, 2017) (en banc); In re Orders of this Court Interpreting Sec. 215 of the Patriot
Act, No. MISC. 13-02, 2013 WL 5460064, at *5 (Foreign Intel. Surv. Ct. Sept. 13, 2013). “[I]t
would serve no discernible purpose for the Court, by rule, to be precluded from considering
reasoned arguments in favor of publication of certain opinions made by claimants with Article III
standing to seek their publication.” In re Orders of this Court Interpreting Sec. 215 of the Patriot
Act, 2013 WL 5460064, at *5.11
Entertaining a request for discretionary publication under Rule 62 is particularly
appropriate where the government “declassifi[es] and release[s a] significant amount of
information about the context and legal underpinnings of [a] FISC order,” and there is “a high
level of public and legislative interest” in the order and related materials. Id. That “unusual
combination of events, among other things, means that non-parties to the [FISC] proceedings
have sufficient information to make reasonably concrete, rather than abstract, arguments in favor
of publication.” Id.
II.

THERE IS NO LONGER ANY REASON FOR THE PAGE WARRANT ORDERS
AND APPLICATION MATERIALS TO BE WITHHELD IN THEIR ENTIRETY
AND DISCLOSURE WOULD SERVE THE PUBLIC INTEREST
Following publication of the Nunes Memo, there is no longer any reason for the Court to

keep its orders related to the surveillance of Carter Page and the related application materials
sealed in their entirety. This Court has recognized that the need for complete secrecy of FISC
11

Although Movants do not assert a claim of right in this motion, Movants would have
Article III standing to do so. See In re Opinions and Orders of This Court Addressing Bulk
Collection of Data Under the Foreign Intelligence Surveillance Act, No. 13-08 (Foreign Intel.
Surv. Ct. Nov. 9, 2017) (en banc).
8

 records gives way when details about those records are made public. In In re Orders of this
Court Interpreting Sec. 215 of the Patriot Act, Judge Saylor directed the government to conduct
a declassification review of FISC opinions evaluating the meaning, scope, and constitutionality
of Section 215 of the Patriot Act after a June 2013 opinion construing Section 215 was leaked to
the public and the government subsequently disclosed additional information about how Section
215 was implemented. 2013 WL 5460064, at *7–8.
Here, as detailed above, the public now knows (1) that the DOJ and FBI applied for a
warrant from this Court for authorization to electronically surveil Page beginning on October 21,
2016, as well the purported grounds on which the government sought the warrant; (2) this Court
granted the DOJ and FBI’s application on October 21, 2016; (3) the DOJ and FBI thrice
requested extensions from this Court to continue surveilling Carter Page; and (4) this Court
thrice authorized continued surveillance of Carter Page. See supra pp. 4–5. There is no longer
any reason why this Court need maintain the entirety of its Page orders and the related warrant
application materials in secret. Given the extent of information about those orders and
applications made public by the President and the HPSCI, release of the orders and materials
with appropriate redactions should now be feasible. See In re Orders of this Court Interpreting
Sec. 215 of the Patriot Act, 2013 WL 5460064, at *8.
Moreover, continued classification of the entirety of this Court’s orders and the warrant
application materials is no longer proper in light of President Trump’s declassification of the
Nunes Memo. Under the current classification regime, information may only be classified when,
at a minimum, its “unauthorized disclosure . . . reasonably could be expected to cause damage to
the national security.” Exec. Order 13,526, 75 Fed. Reg. 707, § 1.2(a)(3). When previously
classified information is officially acknowledged and released, continued classification is

9

 improper, as further disclosure cannot reasonably be expected to cause additional damage to the
national security. Cf. Wolf v. C.I.A., 473 F.3d 370, 378 (D.C. Cir. 2007). Here, neither
information in this Court’s records revealing the existence of the Page orders and warrant
applications nor the information in the warrant applications detailed in the Nunes Memo are
properly classified following the Nunes Memo’s release.
In addition, disclosure of the FISC orders and warrant application materials would serve
the public interest. When public debate erupted over the scope of Section 215 of the PATRIOT
Act after the leak of a June 2013 FISC opinion construing that provision, this Court wisely
recognized that the public interest would be served by publishing this Court’s opinions on the
scope of Section 215. See In re Orders of this Court Interpreting Sec. 215 of the Patriot Act,
2013 WL 5460064, at *7. Specifically, it recognized that publication “would contribute to an
informed debate,” would assist federal legislators in representing their constituents and
discharging their legislative responsibilities, and “assure citizens of the integrity of this Court’s
proceedings.” Id.
Here, too, publication of the Page orders and application materials serves each of those
interests. Publication would contribute to an informed debate about the propriety of the
government’s FISA application, including whether the government abused its surveillance
authority. It would also enable the public to meaningfully evaluate and participate in the
ongoing Congressional debate. Majority members of the House Intelligence Committee offer
one characterization of the warrant applications, while minority members have offered a
competing characterization. Without the underlying application materials, the public is prevented
from assessing the relative merits of each position, and will be unable to assess the merits of any
additional actions taken by the Committee.

10

 Publication would also assist federal legislators by enabling them to “represent[] their
constituents and discharge[e] their legislative responsibilities.” In re Orders of this Court
Interpreting Sec. 215 of the Patriot Act, 2013 WL 5460064, at *7; cf. Br. of Amici Curiae U.S.
Representatives Amash et al., In re Orders of this Court Interpreting Sec. 215 of the Patriot Act,
2013 WL 5460064 (June 28, 2013) (explaining that open debate and the ability to inform the
public freely and without restriction is critical to our democratic system and maintaining
confidence in the government), available at
http://www.fisc.uscourts.gov/sites/default/files/Misc%2013-02%20Brief-1.pdf.
Finally, publication would assure citizens of the integrity of this Court’s proceedings. As
noted above, there are currently conflicting reports about whether the government revealed
Christopher Steele’s political motivations in its warrant applications. See supra pp. 5–6 & nn.
7–9. Disclosure of the warrant application materials would inform the public about whether the
government deliberately concealed information favorable to Page in its warrant applications.
CONCLUSION
For the foregoing reasons, Movants respectfully requests that this Court direct the
publication of its orders authorizing the electronic surveillance of Carter Page, as well as the
government’s initial warrant application and subsequent renewal applications, with only those
limited redactions necessary to maintain the secrecy of non-public information, the disclosure of
which could still reasonably be expected to harm the national security notwithstanding the Nunes
Memo’s publication.
Dated: February 5, 2018
David E. McCraw
Vice President & Assistant General Counsel
THE NEW YORK TIMES COMPANY
620 Eighth Avenue

By: /s/ John Langford
John Langford
Hannah Bloch-Wehba
MEDIA FREEDOM & INFORMATION
ACCESS CLINIC
11

 New York, NY 10018
Phone: 212-556-4031
Fax: 212-556-1009

ABRAMS INSTITUTE
Yale Law School12
P.O. Box 208215
New Haven, CT 06520
Phone: (203) 436-5831
Email: john.langford@ylsclinics.org

Christina Koningisor
THE NEW YORK TIMES COMPANY
Legal Department
620 Eighth Avenue
New York, NY 10018
Phone: (212) 556-1985
Fax: (212) 556-4634
Email: christina.koningisor@nytimes.com

David A. Schulz
MEDIA FREEDOM & INFORMATION
ACCESS CLINIC
ABRAMS INSTITUTE
1675 Broadway, 19th Floor
New York, NY 10019
Phone: (212) 850-6103
Email: schulzd@ballardspahr.com

12

This motion has been prepared in part by a clinic associated with the Abrams Institute for
Freedom of Expression and the Information Society Project at Yale Law School, but does not
purport to present the school’s institutional views, if any.
12

 CERTIFICATE OF SERVICE
I, John Langford, certify that on this day, February 5th, 2018, a copy of the foregoing
brief was served on the following persons by the methods indicated:
By email and overnight UPS delivery:
Debra M. Guerrero-Randall
Litigation Security Group
U.S. Department of Justice
2 Constitution Square
145 N Street, N.E.
Suite 2W-115
Washington, DC 20530
Debra.Guerrero-Randall@usdoj.gov
By overnight UPS delivery:
Jeffery Sessions
Attorney General
Office of the Attorney General
U.S. Department of Justice
National Security Division
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Edward O’Callaghan
Acting Assistant Attorney General for National Security
U.S. Department of Justice
National Security Division
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

/s/ John Langford
John Langford
MEDIA FREEDOM & INFORMATION
ACCESS CLINIC
ABRAMS INSTITUTE
Yale Law School
P.O. Box 208215
New Haven, CT 06520
Phone: (203) 436-5831
Email: john.langford@ylsclinics.org

 EXHIBIT A

THE WHITE HOUSE

WASHINGTON
February 2, 2018

The Honorable Devin Nunes

Chairman, House Permanent Select Committee on Intelligence
United States Capitol

Washington, DC 20515

Dear Mr. Chairman:

On January 29, 2018, the House Permanent Select Committee on Intelligence (hereinafter ?the
Committee?) voted to disclose publicly a memorandum containing classi?ed information
provided to the Committee in connection with its oversight activities (the ?Memorandum,?
which is attached to this letter). As provided by clause 11(g) of Rule of the House of
Representatives, the Committee has forwarded this Memorandum to the President based on its
determination that the release of the Memorandum would serve the public interest.

 

The Constitution vests the President with the authority to protect national security secrets from it
disclosure. As the Supreme Court has recognized, it is the President?s responsibility to classify,
declassify, and control access to information bearing on our intelligence sources and methods
and national defense. See, Dep of Navy v. Egan, 484 US. 518, 527 (1988). In order to
facilitate appropriate congressional oversight, the Executive Branch may entrust classi?ed
information to the appropriate committees of Congress, as it has done in connection with the
Committee?s oversight activities here. The Executive Branch does so on the assumption that the
Committee will responsibly protect such classi?ed information, consistent with the laws of the
United States.

The Committee has now determined that the release of the Memorandum would be appropriate.
The Executive Branch, across Administrations of both parties, has worked to accommodate
congressional requests to declassify speci?c materials in the public interest.1 However, public
release of classi?ed information by unilateral action of the Legislative Branch is extremely rare
and raises signi?cant separation of powers concerns. Accordingly, the Committee?s request to
release the Memorandum is interpreted as a request for declassi?cation pursuant to the
President?s authority.

The President understands that the protection of our national security represents his highest
obligation. Accordingly, he has directed lawyers and national security staff to assess the

 

1 See, e. S. Rept. 114?8 at 12 (Administration of Barack Obama) (?On April 3, 2014 . . . the Committee agreed to
send the revised Findings and Conclusions, and the updated Executive Summary of the Committee Study, to the
President for declassi?cation and public release?); H. Rept. 107-792 (Administration of George W. Bush) (similar);
E.O. 12812 (Administration of George H.W. Bush) (noting Senate resolution requesting that President provide for
declassi?cation of certain information Via Executive Order).

declassi?cation request, consistent with established standards governing the handling of
classi?ed information, including those under Section 3.1(d) of Executive Order 13526. Those
standards permit declassi?cation when the public interest in disclosure outweighs any need to
protect the information. The White House review process also included input from the Of?ce of
the Director of National Intelligence and the Department of Justice. Consistent with this review
and these standards, the President has determined that declassification of the Memorandum is
appropriate.

Based on this assessment and in light of the signi?cant public interest in the memorandum, the
President has authorized the declassi?cation of the Memorandum. To be clear, the
Memorandum re?ects the judgments of its congressional authors. The President understands
that oversight concerning matters related to the Memorandum may be continuing. Though the
circumstances leading to the declassi?cation through this process are extraordinary, the
Executive Branch stands ready to work with Congress to accommodate oversight requests
consistent with applicable standards and processes, including the need to protect intelligence
sources and methods.

Sincerely,


Donald F. McGahn II

Counsel to the President

cc: The Honorable Paul Ryan
Speaker of the House of Representatives

The Honorable Adam Schiff
Ranking Member, House Permanent Select Committee on Intelligence

 

 

   

ssnua 

DeclasSi?ed by order of the President
February 2, 2018

January 18, 2018

To: HPSCI Majority Members
From: HPSCI Majority Staff
Subject: Foreign Intelligence Surveillance Act Abuses at the Department of Justice and the

Federal Bureau of Investigation

Purpose

This memorandum provides Members an update on significant facts relating to the
Committee?s ongoing investigation into the Department of Justice (DOJ) and Federal Bureau of
Investigation (FBI) and their use of the Foreign Intelligence Surveillance Act (F ISA) during the
2016 presidential election cycle. Our ?ndings, which are detailed below, 1) raise concerns with
the legitimacy and legality of certain DOJ and FBI interactions with the Foreign Intelligence
Surveillance Court (FISC), and 2) represent a troubling breakdown of legal processes established
to protect the American people from abuses related to the ISA process.

Investigation Update

- On October 21, 2016, DOJ and FBI sought and received a ISA probable cause order
(up; under Title VII) authorizing electronic surveillance on Carter Page from the FISC. Page is a
US citizen who served as a volunteer advisor to the Trump presidential campaign. Consistent .
with requirements under FISA, the application had to be ?rst certi?ed by the Director or Deputy 
Director of the FBI. It then required the approval of the Attorney General, Deputy Attorney
General (DAG), or the Senate?con?rmed Assistant Attorney General for the National Security
Division. 

The FBI and DOJ obtained one initial FISA warrant targeting Carter Page and three FISA
renewals from the FISC. As required by statute (50 U.S.C. a FISA order on an
American citizen must be renewed by the ISC every 90 days and each renewal requires a
separate finding of probable cause. Then-Director James Comey signed three FISA applications
. in question on behalf of the FBI, and Deputy Director Andrew McCabe signed one. 
Sally Yates, then-Acting DAG Dana Boente, and DAG Rod Rosenstein each signed one or more
FISA applications on behalf of 

Due to the sensitive nature of foreign intelligence activity, FISA submissions (including
renewals) before the ISC are classified. As such, the public?s con?dence in the integrity of the
FISA process depends on the court?s ability to hold the government to the highest standard??
particularly as it relates to surveillance of American citizens. However, the rigor in
protecting the rights of Americans, which is reinforced by 90?day renewals of surveillance
orders, is necessarily dependent on the government?s production to the court of all material and
relevant facts. This should include information potentially favorable to the target of the FISA


PROPERTY OF THE U.S. HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

TGIF-SEW

application that is known by the government. In the case of Carter Page, the government had at
least four independent opportunities before the FISC to accurately provide an accounting of the
relevant facts. However, our ?ndings indicate that, as described below, material and relevant
information was omitted.

1)

2)

The ?dossier?- compiled by Christopher Steele (Steele dossier) on behalf of the
Democratic National Committee (DNC) and the Hillary Clinton campaign formed an
essential part of the Carter Page FISA application. Steele was a longtime FBI source who
was paid over $160,000 by the DNC and Clinton campaign, via the law ?rm Perkins Coie
and research ?rm Fusion GPS, to obtain derogatory information on Donald Trump?s ties
to Russia.

a) Neither the initial application in October 2016, nor any of the renewals, disclose or
reference the role of the DNC, Clinton campaign, or. any party/campaign in funding
Steele?s efforts, even though the political origins of the Steele dossier were then
known to senior and FBI of?cials.

b) The initial FISA application notes Steele was working for a named US. person, but
does not name Fusion GPS and principal Glenn Simpson, who was paid by a US. law
?rm (Perkins Coie) representing the DNC (even though it was known by DOI at the,
time that political actors were involved with the Steele dossier). The application does
not mention Steele was ultimately working on behalf of?and paid by?wthe DNC and
Clinton campaign, or that the FBI had separately authorized payment to Steele for the
same information. 

The Carter Page FISA application also cited extensively a September 23, 2016, Yahoo
News article by- Michael Isikoff, which focuses on Page?s July 2016 trip to Moscow.

- This article does not corroborate the Steele dossier because it is derived from information

leaked by Steele himself to Yahoo News. The Page FISA application incorrectly assesses
that Steele did not directly provide information to Yahoo News. Steele has admitted in
British court ?lings that he met with Yahoo Newly?and several other. outlets?in
September 2016 at the direction of Fusion GPS. Perkins Coie was aware of Steele?s
initial media contacts because they hosted at least one meeting in Washington DC. in
2016 with Steele and Fusion GPS where this matter was discussed."

a) Steele was suspended and then terminated as an FBI source for what the FBI de?nes
as the most serious of violations?an unauthorized disclosure to the media of his
relationship with the FBI in an October 30, 2016, Mother Jones article by David
Corn Steele should have been terminated for his previous undisclosed contacts with
Yahoo and other outlets' 1n September?before the Page application was submitted to

 

PROPERTY OF THE US. HOUSE OF REPRESENTATIVES

 

 

3)

4)



the FISC in October-but Steele improperly concealed from and lied to the FBI about
those contacts.

b) Steele?s numerous encounters with the media violated the cardinal rule of source
handling?maintaining con?dentiality?and demonstrated that Steele had become a
less than reliable source for the FBI.

Before and after Steele was terminated as a source, he maintained contact with DOJ via
then-Associate Deputy Attorney General Bruce 0hr, a senior DOJ of?cial who worked
closely with Deputy Attorneys General Yates and later Rosenstein. Shortly after the
election, the FBI began interviewing 0hr, documenting his communications with Steele.
For example, in September 2016, Steele admitted to 0hr his feelings against then-
candidate Trump when Steele said he ?was desperate that Donald Trump not get
elected and was passionate about him not, being president.? This clear evidence of .
Steele? bias was recorded by Ohr at the time and subsequently in of?cial FBI ?les?but
not re?ected in any of the Page FISA applications.

a) During this same time period, Ohr?s wife was employed by Fusion GPS to assist in
the cultivation of opposition research on Trump. Ohr later provided the FBI with all
of his wife?s opposition research, paid for by the DNC and Clinton campaign via
Fusion GPS. The Ohrs? relationship with Steele and Fusion GPS was inexplicably
concealed from the FISC. .

According to the head of the counterintelligence division, Assistant Director Bill

Priestap, corroboration of the Steele dossier was in its ?infancy? at the time of the initial

Page FISA application. After Steele was terminated, a source validation report conducted

by an independent unit within FBI assessed Steele?s reporting as only minimally

corroborated. Yet, in early January 2017, Director Comey briefed President-elect Trump

on a summary of the Steele dossier, even though it was??according to his June 2017

and unveri?ed.? While the FISA application relied on Steele?s

past record of credible reporting on other unrelated matters, it ignored or concealed his
anti?Trump ?nancial and ideological motivations. Furthermore, Deputy Director

McCabe testi?ed before the Committee in December 2017 that no surveillance warrant

would have been sought from the FISC without the Steele dossier information.

 

   

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PROPERTY OF THE U.S. HOUSE OF REPRESENTATIVES

 

 



5) The Page FISA application also mentions information regarding fellow Trump campaign
advisor George Papadopoulos, but there is no evidence of any cooperation or conspiracy
between Page and Papadopoulos. The Papadopoulos information triggered the opening
of an FBI counterintelligence investigation in late July 2016 by FBI agent Pete Strzok.
Strzok was reassigned by the Special Counsel?s Office to FBI Human Resources for
improper text messages with his mistress, FBI Attorney Lisa Page (no known relation to
Carter Page), where they both demonstrated a clear bias against Trump and in favor of
Clinton, Whom Strzok had also investigated. The Strzok/Lisa Page texts also re?ect
extensive discussions about the investigation, orchestrating leaks to the media, and
include a meeting with Deputy Director McCabe to discuss an ?insurance? policy against
President Trump?s election.

 

I

PROPERTY OF THE U.S. HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

UNITED STATES
FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, D.C.

IN RE ORDERS AND RECORDS OF THIS
COURT RELATED TO THE
SURVEILLANCE OF CARTER PAGE

No. Misc. 18–_______

DECLARATION OF JOHN LANGFORD
1.

I am a supervising attorney at the Media Freedom and Information Access Clinic

(“MFIA Clinic”), which represents Movants Adam Goldman, Charlie Savage, and The New
York Times Company in this motion.
2.

I am an attorney licensed to practice law in New York.

3.

I submit this declaration in support of Movants’ motion for publication of court

records.
4.

Attached hereto as Exhibit A is a true and correct copy of the following publicly

available memorandum and cover letter: Memorandum from House Permanent Select Committee
on Intelligence Majority Staff to House Permanent Select Committee Majority Members (Jan.
18, 2018), available at https://intelligence.house.gov/uploadedfiles/memo_and_white_house_
letter.pdf.
*****
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 5th day of February, 2018, in New Haven, Connecticut.
By: /s/ John Langford
John Langford

 UNITED STATES
FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, D.C.

IN RE ORDERS AND RECORDS OF THIS
COURT RELATED TO THE
SURVEILLANCE OF CARTER PAGE

No. Misc. 18–_______

CERTIFICATION OF BAR MEMBERSHIP AND SECURITY CLEARANCE
STATUS
Pursuant to the United States Foreign Intelligence Surveillance Court’s Rules of
Procedure 7(h)(1), 7(i), and 63, Movants respectfully submit the following information.
Bar Membership Information
The following counsel for Movants are licensed attorneys and members, in good
standing, of the bars of United States district and circuit courts. See FISC R.P. 7(h)(1), 63.
David Schulz is a member, in good standing, of the following federal courts: the Supreme
Court of the United States; the United States Courts of Appeals for the Second, Third, Fourth,
Ninth, Tenth and District of Columbia Circuits; and the United States District Courts for the
District of Columbia, and for all Districts of the State of New York. He is licensed to practice
law by the bars of the District of Columbia and the State of New York.
John Langford is a member, in good standing, of the following federal courts: the United
States Courts of Appeals for the Second and Ninth Circuits; and the United States District Courts
for the Southern and Eastern Districts of New York. He is licensed to practice law by the bar of
the State of New York.
Hannah Bloch-Wehba is a member, in good standing, of the following federal courts:
United States Courts of Appeals for the Ninth and Eleventh Circuits; and the United States

 District Court for the District of Columbia. She is licensed to practice law by the bars of the
State of Texas and the District of Columbia.
David McCraw is a member, in good standing, of the following federal courts: the United
States Court of Appeals for the Second Circuit; and the United States District Courts for the
District of Columbia and the Southern and Eastern Districts of New York. He is licensed to
practice law by the bar of the State of New York.
Christina Koningisor is not a member of any federal court but is practicing under the
supervision of counsel listed herein. She is licensed to practice law by the bars of the State of
New York and the Commonwealth of Massachusetts.
Security Clearance Information
The above-listed counsel for Movants do not hold, and have never held, a security
clearance.
Because Movants’ motion and the related briefing does not contain classified
information, Movants respectfully submits that all undersigned counsel may participate in
proceedings on the motion without access to classified information or security clearances. See
FISC R.P. 63 (requiring counsel only to have “appropriate security clearances”).

Dated: February 5, 2018
By: /s/ John Langford
John Langford
Hannah Bloch-Wehba
MEDIA FREEDOM & INFORMATION
ACCESS CLINIC
ABRAMS INSTITUTE
Yale Law School
P.O. Box 208215
New Haven, CT 06520

David E. McCraw
Vice President & Assistant General Counsel
THE NEW YORK TIMES COMPANY
620 Eighth Avenue
New York, NY 10018
Phone: 212-556-4031
Fax: 212-556-1009

2

 Christina Koningisor
THE NEW YORK TIMES COMPANY
Legal Department
620 Eighth Avenue
New York, NY 10018
Phone: (212) 556-1985
Fax: (212) 556-4634
Email: christina.koningisor@nytimes.com

Phone: (203) 436-5831
Email: john.langford@ylsclinics.org
David A. Schulz
MEDIA FREEDOM & INFORMATION
ACCESS CLINIC
ABRAMS INSTITUTE
1675 Broadway, 19th Floor
New York, NY 10019
Phone: (212) 850-6103
Email: schulzd@ballardspahr.com

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