Two weeks ago, a judge ordered the Department of Justice to provide a sworn affidavit stating whether the federal government possessed the entire Trump dossier put together by former British spy Christopher Steele, before BuzzFeed published the 35-page document. At the time, Judge Amit P. Mehta’s order merited mention, but the true import of the dispute between BuzzFeed and the federal government only recently became clear.
First, the backdrop: On Jan. 10, 2017, BuzzFeed News published “These Reports Allege Trump Has Deep Ties to Russia.” The article included a link to what has since become known colloquially as the Steele dossier—a collection of memos Steele prepared that detail supposed collusion to influence the 2016 presidential election between then-presidential candidate Donald Trump and his campaign and Russia.
The last two pages of the dossier, however, targeted Aleksej Gubarev and his company Webzilla. Those concluding pages consisted of Steele’s final memo, dated Dec. 13, 2016, and claimed—behind the redactions—that Gubarev’s company used “botnets and porn traffic to transmit viruses, plant bugs, steal data and conduct ‘altering operations’ against the Democratic party leadership.”
Following publication of the dossier, Gubarev and Webzilla sued BuzzFeed, claiming Steele’s allegations were false and BuzzFeed’s publication of the dossier damaged Gubarev and his company’s reputation. BuzzFeed maintains it is not liable for defamation under the so-called “fair report privilege.” That protects reporters who republish information that is the subject of an “official proceeding.”
In June, the judge presiding over the BuzzFeed case held that the term “official proceeding” broadly applies to any official action, which would include a confidential briefing to the president on the details of the dossier as well as the FBI investigation into the veracity of the dossier’s allegations. However, the court stressed that BuzzFeed must still prove that the briefing of President Obama and the FBI investigation actually occurred.
To do so, BuzzFeed subpoenaed the federal government to confirm that the presidential briefing and FBI investigation took place, as reported, prior to the online news source’s publication in January 2017 of the entire dossier. The federal government refused to comply with the subpoena, forcing BuzzFeed to sue the government in a D.C. federal court.
The D.C. court recently ruled that the DOJ must provide BuzzFeed an affidavit answering three questions. First, the government must state whether the FBI or other agencies possessed all 35 pages of the dossier. (Alternatively, the court held the government could merely confirm that it possessed the two-page memo dated Dec. 13, 2016 that targeted Gubarev.)
Second, the court required the FBI to confirm that it received from Sen. John McCain a copy of the first 33 pages of the dossier on or about Dec. 9, 2016. Finally, the government must state whether Clapper, Rogers, Brennan and/or Comey briefed Obama “about allegations contained in the Dossier” before Jan. 10, 2017.
We Already Knew All This
The public, however, has long understood these facts to be true—that the FBI had received the entire Steele dossier, that McCain provided the initial copy to the FBI, and that high-level officials briefed then-President Obama on the contents of the dossier. Why, then, did the DOJ fight BuzzFeed’s subpoena so stridently?
The recent focus on the DOJ’s Bruce Ohr and his role as a conduit for Steele to feed the FBI dirt on Trump provides the likely answer. As detailed at length already, Steele had served as a source for the FBI until the bureau terminated him for leaking confidential information to Mother Jones and other outlets.
We recently learned, however, that on Nov. 1, 2016, the FBI expressly directed Steele “not to operate to obtain any intelligence whatsoever on behalf of the FBI.” Yet Steele and the FBI devised a work-around. The former MI6 spy and his Fusion GPS boss, Glenn Simpson, gathered the “intel” on Trump and fed it to the FBI through then-associate deputy attorney general Ohr.
This renewed attention to the dossier and its author exposed the real problem for the government if it admits in the BuzzFeed litigation that the FBI possessed Steele’s Dec. 13, 2016, memo: By acknowledging that the FBI had Steele’s Dec. 13, 2016 memo before BuzzFeed published it, the bureau would be admitting that it continued to use Steele as a source after officially suspending him and directing him on Nov. 1, 2016, to no longer “obtain any intelligence whatsoever on behalf of the FBI.”
In fighting BuzzFeed’s subpoena, the government sought refuge in the law enforcement privilege, which protects “techniques, sources, and investigations” from disclosure. But the judge was having none of it, and rightly so: Protecting the FBI from embarrassment and criticism over its plot to use Ohr as the middleman for the G-men is not a legitimate goal of the law enforcement privilege.
There’s Something Else Hidden Here
The judge’s rejection of the DOJ’s reliance on the law enforcement privilege is interesting for another reason that has escaped notice. In analyzing the FBI’s argument, the judge noted that the FBI had claimed that complying with the subpoena would require revealing “previously undisclosed details about an ongoing law enforcement investigation.”
The court then dropped a footnote, footnote 9, that added the DOJ had not argued the disclosure would likewise affect an ongoing “governmental self-evaluation” or “interdepartmental disciplinary proceedings”—factors that would support the government’s position.
The DOJ’s failure to argue that the requested disclosure would interfere in an ongoing internal review is surprising given that the Office of Inspector General is currently investigating the DOJ and FBI’s “relationship and communications” with Steele as they relate to the Carter Page Foreign Intelligence Surveillance Act court applications. In those applications, the DOJ claimed, it had suspended Steele around October 2016 for leaking to the press and later closed Steele as an FBI source—even though at the time the applications were submitted to the FISA court, Steele appeared to be feeding “intel” to the FBI through Ohr.
That does not necessarily mean Inspector General Michael Horowitz is not looking into Ohr’s role in Spygate, but just to be sure he is, Attorney General Jeff Sessions and concerned members of Congress should expressly request Horowitz investigate Ohr’s role as a backdoor conduit to the FBI for Steele.