The Next Big Revelations About The Steele Dossier Will Come From Courts, Not Congress

The Next Big Revelations About The Steele Dossier Will Come From Courts, Not Congress

More big details will likely come from twin U.S. libel lawsuits on a Democrat-funded opposition research dossier from a former British spy used to authorize spying on a U.S. citizen.
Margot Cleveland
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Congress continues to ask questions concerning the Christopher Steele dossier, now focusing on whether the author of the Clinton campaign and Democratic National Committee-funded political poppycock previously worked for the Russians.

In a letter to Inspector General Michael Horowitz, Senators Chuck Grassley (R-Iowa) and Lindsey Graham (R-S.C.) also asked the Department of Justice’s internal watchdog to determine whether Steele “coordinated in any way with employees of the FBI or DOJ” in pushing the dossier into the public sphere following President Donald Trump’s election.

Answers to these and other questions may be forthcoming soon, but not due to congressional efforts. Rather, the next big information burst will likely come during the course of Aleksej Gubarev’s twin libel lawsuits, one against the dossier’s author, former British MI6 spy Steele, and the second against BuzzFeed, the online media outlet that first ran Steele’s opposition research in its entirety, and its editor-in-chief, Ben Smith.

In his lawsuits, Gubarev, who emigrated from Russia to Cyprus in 2002, claims Steele defamed him by stating that his companies, XBT Holding S.A. and its Florida-based subsidiary, Webzilla, hacked the Democratic Party by “using botnets and porn traffic to transmit viruses, plant bugs, steal data and conduct ‘altering operations.’” While Gubarev’s lawsuits focus on only a sliver of the Steele dossier, to prove his case—especially against BuzzFeed, which as a U.S. media outlet is protected from liability absent malice—Gubarev needs details.

BuzzFeed needs details as well, because it seeks to avoid liability based on a so-called “Fair Report Privilege” which, according to BuzzFeed, grants “the press (and others) the right to republish allegedly defamatory statements, . . . as long as they were made within the context of government activities.” Accordingly, to (respectively) prosecute and defend the civil claims, Gubarev and BuzzFeed need information from both those responsible for compiling and distributing the Steele dossier and those in the government who used the information.

Subpoenas Flying Everywhere

Currently, there are at least four battles brewing over Gubarev and BuzzFeed’s attempts to access this and other information. One pits BuzzFeed against the DNC, which has refused to comply with a subpoena for “technical information” of the “‘clues’ and ‘evidence’ left behind by the cyber-intruders who breached the DNC’s network in 2016.” BuzzFeed seeks this information to determine whether Gubarev’s Webzilla companies were responsible for the cyberattack, as claimed in the dossier. A federal district court in DC will determine whether the DNC must turn over this information.

BuzzFeed has also subpoenaed documents from the federal government. After those documents were not forthcoming, BuzzFeed filed a motion to compel, also in a federal district court in Washington DC. In that case, BuzzFeed argued that to support its “Fair Report Privilege” defense in the Florida litigation, it needs to establish that the Steele dossier triggered a federal investigation.

Following a hearing on its motion, BuzzFeed filed a follow-up report with the district court, noting that rather than depose government officials, it merely needed the federal government to submit an affidavit swearing to three facts: (1) whether, prior to January 10, 2017, the FBI, DOJ, or Office of National Intelligence had a copy of the dossier as published by BuzzFeed; (2) “whether on or about December 9, 2016, the FBI received from Senator John McCain a copy of the Dossier containing the first 33 pages published by BuzzFeed”; and (3) “whether, prior to January 10, 2017, Mr. Clapper, Mr. Rogers, Mr. Brennan, and/or Mr. Comey briefed President Obama about the Dossier and provided a synopsis of it.”

In response, last week the DOJ filed with the DC district court “a declaration classified SECRET for the Court’s ex parte, in camera review.” The DOJ submitted this sworn statement to support its claim that the “law enforcement privilege” protects it from complying with BuzzFeed’s subpoena. There is no timetable for the district court to rule on the motion, but with discovery closing in the Florida case in June, a decision is likely come well in advance of that deadline to allow BuzzFeed the ability to appeal an adverse decision.

Court Incredulous of DOJ’s Attempts at Concealment

While there is no way to know how the court will eventually rule, when the DOJ made this same argument at a February hearing, the district court judge said it was going to be “hard to sell.” “What is the burden on the United States Department of Justice to produce a two-paragraph affidavit that says, ‘[t]his is when we got the December memo?’” the judge demanded to know.

Then when the DOJ maintained that providing such an affidavit would provide “law-enforcement-sensitive information,” since the DOJ, the FBI, and the Office of National Intelligence had never confirmed the dossier contents were being investigated as of January 10, 2017, the district court was incredulous, given President Trump’s declassifying of the information contained in the House intelligence committee Republicans’ memo released to the public.

The third fight for information involves Gubarev’s attempts to force Fusion GPS—the company that paid Steele on behalf of the Clinton campaign and DNC for the information complied in the dossier—to respond to his subpoena seeking documents related to Steele, the dossier, and XBT holding and Webzilla. Gubarev also sought to depose Fusion management to determine the purported factual basis for dossier’s allegedly defamatory statements.

Fusion refused to comply with Gubarev’s demand for information and instead filed a motion to “quash” the subpoena. That motion has yet to be ruled on, but should the court force Fusion to provide Gubarev this information the details will likely provide great insight into the many machinations surrounding the creation and distribution of the dossier.

American Lawyers to Grill Steele

The final dispute concerns evidence former State Department employee David Kramer provided in the Florida BuzzFeed lawsuit that currently remains under seal. To understand the significance of Kramer’s evidence, however, requires a brief detour to a fifth fight that recently resolved with Gubarev and BuzzFeed scoring a victory: Last week, the High Court of Justice in London rejected Steele’s attempts to avoid grilling by Gubarev and BuzzFeed’s lawyers and ruled that the former British intelligence agent possessed information relevant to Gubarev’s U.S. lawsuit and must submit to questioning.

Steele’s forthcoming examination by American lawyers holds the potential to further contradict Democrats’ narrative that the FBI and DOJ reasonably relied on the dossier to obtain a Foreign Intelligence Surveillance Act (FISA) wiretap of former Trump campaign volunteer Carter Page. After all, Steele has already made several damning revelations in documents filed in his defense to the separate defamation case Gubarev filed against him in England.

For instance, Steele stated that he “considered, correctly, that the raw intelligence in the December memorandum needed to be analyzed and further investigated/verified.” Steele also explained that he arranged for Kramer, a former U.S. State Department employee and assistant secretary of state, to provide a copy of the dossier to McCain “for the sole purpose of analyzing, investigating and verifying their contents to enable such action to be taken as necessary for the purpose of protecting US national security.” Steele added that he “expressly informed” Kramer that the memoranda were only to be used for this exclusive purpose.

Yet the DOJ relied upon the Steele dossier to obtain an order from the FISA court to wiretap Page without corroborating the allegations against Page. And now that the London court has ordered Steele to submit to questioning by Gubarev and BuzzFeed’s attorneys, we can expect Steele to further dumb down his dossier story to mesh with his theory of defense in his libel case, namely that the dossier consisted of raw intelligence that “did not represent (and did not purport to represent) verified facts.”

This Needs to Be Secret Because I Didn’t Say Anything

Kramer, who served as Steele’s messenger man and courier, likely holds more details surrounding the dossier, many of which Gubarev and BuzzFeed already know because they deposed him as part of the Florida libel action. But Kramer is now in court seeking a protective order to keep his video deposition and a transcript of it sealed. In fact, Kramer has obtained a court order sealing his motion for a protective order.

Ironically, in requesting permission to file his motion for a protective order under seal, Kramer argued that if his “Motion for Protective Order becomes public, it could threaten the integrity of ongoing Congressional investigations.” Kramer explained that he “recently provided testimony to both houses of Congress, testifying in a ‘closed-door’ session before the United States House Permanent Select Committee on Intelligence, and providing additional testimony to the United States Senate Select Committee on Intelligence.”

Kramer maintains that his testimony was “required to be treated as confidential,” and since the substance of that testimony is “largely repeated in his Motion for Protective Order,” the latter should be sealed. But Kramer, who in January was subpoenaed to testify “in connection with questions from the House Intelligence Committee about the anti-Trump dossier’s Russian sources,” has since pled the Fifth Amendment and refused to further cooperate. So much for “the integrity of ongoing Congressional investigations.”

Kramer, however, also claimed sealing his motion was necessary because “specific portions of the deposition” quoted in the motion “could put him and his family in danger if made public.” Kramer’s claim may sound hyperbolic, but his concerns may be legitimate, especially if he knows the identity of the unnamed sources referenced in the dossier.

Don’t Do the Same Thing to Me I (Allegedly) Did to Others

Steele has made similar claims, noting in proceedings in London that he was “horrified and remains horrified that the US Defendants published the dossier at all, let alone without substantial redactions,” because this may have put his sources’ “lives, their families and their livelihoods at risk.”

Here, then, lives a second irony: Kramer does not want his motion—and presumably his deposition—made public because of concerns over his safety, but Kramer may well be the individual who put Steele’s sources in jeopardy by giving the dossier to BuzzFeed. Kramer has long been suspected of leaking the dossier to BuzzFeed, but while Gubarev now knows who provided BuzzFeed with the dossier, he cannot disclose that information. Instead, that answer lies buried in a sealed exhibit filed in the Florida litigation.

Whether the Florida district court will unseal that exhibit or the Kramer deposition is yet to be seen, but Kramer’s role as the courier and likely leaker of the dossier, coupled with his previous service in the State Department, should put senators Grassley and Graham on notice that the 30-something questions they recently directed to the IG need updating. The senators should also direct the IG to determine whether Kramer “coordinated in any way” with employees of the FBI, DOJ, State Department, or Congress to pimp the publication of the dossier following President Trump’s election.

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame. The views expressed here are those of Cleveland in her private capacity.

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