On Thursday, Rep. Devin Nunes reiterated his plans to refer eight individuals involved in targeting Donald Trump’s 2016 presidential campaign to Attorney General William Barr for a criminal investigation. But a close look at recent filings in the CNN Freedom of Information Act (FOIA) lawsuit against the FBI suggests that the DOJ has already closed one criminal referral—likely the Grassley-Graham referral of dossier author Christopher Steele.
CNN filed its FOIA lawsuit against the FBI in May 2017, seeking “copies of all records of notes taken by or communications sent from FBI Director James Comey regarding or documenting interactions (including interviews and other conversations) with President Donald Trump.” These documents soon became known as the “Comey memos” after the former FBI director testified before the Senate Select Committee on Intelligence in early June 2017 that he had “drafted contemporaneous memoranda after various meetings and conversations with President Trump in which he discussed matters pertaining to the Russia investigation, among other things.”
Initially, the FBI denied CNN’s request for the records, stating that the materials requested were exempted from FOIA because they involved “a pending or prospective law enforcement proceeding.” However, after the DOJ provided redacted versions of the Comey memos to Senate and House committees, and following Congress’ disclosure of the memos to the media, the FBI released seven of the memos. Three were released in full and four were partially redacted.
CNN continued to press for a full release of the redacted memos. In response, the FBI filed two declarations to the federal court “in camera and ex parte,” meaning CNN was not allowed to see the declarations or attend the hearing in which the court considered the government’s argument. However, after the memos were released, the FBI agreed there was no reason to keep portions of the declarations secret. Then, upon completion of Special Counsel Robert Mueller’s investigation two weeks ago, the court ordered the FBI to determine whether additional details could be released. That question remains unresolved.
Yet the portions of the declarations already made public reveal several significant details, the most startling being the strong likelihood that the FBI has ended an investigation into former MI6 spy Steele. This conclusion flows from the fifth declaration filed by FBI Section Chief David Hardy in the CNN case.
In his fifth declaration, Hardy explained that the FBI was relying on FOIA Exemptions (b)(1), (b)(3), (b)(7)(A), and (b)(7)(E) to redact information, and he provided a table summarizing the information the government sought to protect and the corresponding FOIA exemptions.
Hardy then proceeded to justify each proffered exemption. In doing so, when Hardy reached the (b)(7)(A) exemption the FBI relied upon to redact block 19, the FBI resident FOIA expert dropped a footnote explaining that “[w]hen the Comey Memos were publicly disclosed, Exemption (b)(7)(A) was cited for redaction blocks 10-15 and 18. The FBI is no longer relying on Exemption (b)(7)(A) for these redactions.”
The key here is understanding what Exemption (b)(7)(A) protects: “Records or information compiled for law enforcement purposes [which if released] could reasonably be expected to interfere with enforcement proceedings.” As Hardy explained, for this exemption to apply, there must be “a pending or prospective law enforcement proceeding.”
But on December 14, 2018—the date Hardy signed the fifth declaration—the FBI no longer asserted Exemption (b)(7)(A) to support the redactions in blocks 10-15 and 18. Those redaction blocks, as seen below, all point to Steele and the Steele dossier. As the coding to the right of the blocked paragraphs confirms, and as Hardy attested, the FBI originally sought to redact the information based on the “pending or prospective law enforcement proceeding” b7A exemption.
Now consider the timing: The FBI listed the (b)(7)(A) exemption when it first released the Comey memos to The Vault on May 4, 2018. The FBI’s reliance on the “pending or prospective law enforcement proceeding” FOIA exemption came just four months after senators Chuck Grassley and Lindsey Graham sent a criminal referral for Steele to Acting Attorney General Rod Rosenstein and FBI Director Christopher Wray. However, as of December 14, 2018, when Hardy signed the declaration, the FBI was no longer relying on that exemption.
What changed? It wasn’t the closing of the Mueller probe, because the special counsel shuttering shop would not happen for several more months.
The most logical explanation is that the FBI closed its investigation of Steele. If so, Barr can still right the ship and fully investigate all of the individuals responsible for targeting the Trump campaign, including Steele. Given Barr’s comments of late—that he believes the Trump campaign was spied upon—he seems poised to do so.
A spokesperson for Graham’s office declined to comment on this article.
