FBI Director Christopher Wray told lawmakers Thursday he could not “lawfully” give them access to a confidential warrant application for permission to surveil members of the Trump campaign, but President Donald Trump could lawfully order him to do just that through his subordinates at the FBI and Department of Justice (DOJ).
The FBI’s Foreign Intelligence Surveillance Act (FISA) court warrant application would reveal whether the bureau relied upon the Steele dossier – unverified opposition research on President Donald Trump financed by the Clinton campaign – to obtain a warrant allowing them to surveil Trump campaign officials.
During his Thursday testimony before the House Judiciary Committee, Wray managed to conceal the extent to which the FBI relied upon the Steele dossier to obtain a warrant from the secretive FISA court, citing the document’s confidential status and deference to the ongoing inspector general (IG) investigation into whether the conduct of FBI officials was politically motivated.
GOP Rep. Jim Jordan of Ohio pressed Wray to turn over the FISA court application, pointing out that doing so would immediately clear up whether the FBI relied on the dossier, which amounted to a collection of unverified claims indicating Kremlin officials compromised Trump.
“Is there anything prohibiting you from showing this committee [that application]?” Jordan asked.
“I do not believe that I can legally and appropriately share a FISA court submission with this committee,” Wray responded. “When I sign FISA applications, which I have to do almost every day of the week, they are all covered with a ‘classified information’ cover.”
Wray also cited the ongoing IG investigation in refusing to answer questions related to whether anti-Trump FBI agent Peter Strzok’s political bias led to him modify former FBI Director James Comey’s description of Clinton’s handling of confidential information from “grossly negligent” to “extremely careless.” He similarly cited the IG probe when he refused to elaborate on what steps are being taken to ensure decision making at the highest levels of the FBI remain untainted by partisanship.
REP. JORDAN EXPLAINS THE CONNECTION BETWEEN THE STEELE DOSSIER, CLINTON, THE FBI AND RUSSIA
The Wall Street Journal editorial board called Wray’s invocation of the IG probe “an excuse, not a serious reason,” and noted the IG office “was never intended to supplant congressional oversight, much less be an excuse for executive officials to protect their decisions from scrutiny.”
As for Wray’s insistence that the classified status of the FISA warrant prevents him from furnishing it for congressional investigators – the Judiciary Committee has the requisite clearance to view the document in a closed setting. However, it should be noted that having clearance doesn’t automatically mean a person is granted access to all classified materials. The person requesting access must have a need to know, which members of the Judiciary Committee are claiming.
Trump could lawfully intervene and override Wray’s effort to limit FBI transparency by ordering deputy Attorney General Rod Rosenstein to make the FISA warrant available to the House Judiciary Committee. Rosenstein would likely have to issue the directive as Attorney General Jeff Sessions recused himself from matters related to the Russia investigation.
“As a legal matter, my understanding is that if the FISC [FISA court] records are in the government’s possession they can be released subject to whatever security classifications have been put on those records. Approval of the FISA court is not required,” Samuel Estreicher, who teaches U.S. foreign relations law at NYU School of Law, told The Daily Caller News Foundation.
“As a policy/political matter, the President would be ill-advised to intervene directly. He could ask the AG or Rosenstein to review the matter and get back to him,” he added.
The question of whether the FBI was motivated to surveil Trump campaign officials due to the contents of the Steele dossier was made all the more relevant in early December when Fox News reported, and the DOJ confirmed, that top DOJ lawyer Bruce Ohr was in contact with Christopher Steele, the British spy who compiled the dossier, prior to the election. Ohr was later demoted, which suggests those contacts were unapproved.
The report regarding Ohr’s contacts with Steele closely followed a damning CNN report that Strzok — the FBI official who opened the Clinton email investigation and the investigation into the Trump campaign — was removed from the special counsel team after it was discovered he exchanged text messages critical of Trump with a colleague.
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