Wouldn’t it be ironic if the very document that started the whole Russia-collusion story (sorry, no, I don’t believe that an alcohol-fueled bull session between George Papadopoulos and an Australian diplomat set off the investigation) ends up making a large portion of special counsel Robert Mueller’s investigation completely public?
Last week I posted on the lawsuit filed by BuzzFeed against the DNC. BuzzFeed is locked in an existential battle with a Russian tech mogul named Aleksej Gubarev. The Trump dossier, the one that served as probable cause for a FISA warrant on Carter Page, accuses Gubarev of being behind the hack of the DNC server. BuzzFeed, keenly aware of its likely Gawker-esque fate if it loses the lawsuit, is flailing about desperately trying to prove the allegations are true. To this end they have sued the DNC for proof that their server was hacked…a contention that I think is a 50-50 proposition at best given the fact that here has been zero forensic analysis of the server by any law enforcement agency. If the DNC can’t produce the proof, this doesn’t mean that they weren’t hacked it just means that the sum total of the evidence for the hacking is the DNC’s word. This is likely to be fatal to BuzzFeed.
A second line of investigation for BuzzFeed is based off the memo released by the House Intelligence Committee documenting the degree to which the FBI relied upon the Trump dossier, authored by Fusion GPS subcontractor Christopher Steele, to obtain at least one FISA warrant. This is where the fun begins because that FISA warrant is the Holy freakin Grail for BuzzFeed. With access to the warrant they can show the court what parts the FBI verified and make the case they were not “negligent.”
During a hearing on a bid by BuzzFeed to get more information about how a so-called dossier compiled by a former British spy was handled, U.S. District Court Judge Amit Mehta grew frustrated with a Justice Department lawyer who argued that Trump’s declassification order did not alter the contours of the legal dispute.
Mehta said the government would normally be entitled to deference in asserting the need to keep its investigative work under wraps, but perhaps no longer with respect to the dossier.
“This isn’t the ordinary case,” Mehta told a Justice Department lawyer, Anjali Motgi. “I don’t know of any time the president has declassified the fact of a counterintelligence investigation. That’s going to be a hard sell given what the president has done. … This is a new frontier and it has an impact.”
While Motgi sought to stress that a letter from White House counsel Don McGahn accompanying the Nunes memo indicated that the executive branch wasn’t endorsing the memo’s contents, Mehta wasn’t buying that.
“You think the White House would have let a factually inaccurate memo go out to the public?” the judge asked skeptically. “Are you telling me that the Department of Justice is at odds with the president of the United States about the factual accuracy of the Nunes memo?”
While their request is now focused narrowly on what they did with the information on Gubarev, you can see where this is going. If the feds did look into that and found nothing (a safe bet) then they are going to want to see what the government did with other parts because they have to prove some part of this was actually true or that they weren’t acting any more recklessly and negligently than the FBI and Department of Justice. Given the fact that Justice has an investigation looking into the use of the dossier, you can bet BuzzFeed will go after it, too.
Personally, I think the judge’s reasoning is just another case of lex Trumpis, a perverse legal decision rendered to spite Trump. It is difficult to see how revealing the existence of an investigation…something the House of Representatives was going to do on its own had Trump declined to declassify it…entitles BuzzFeed to fish. But, in this case, I hope the judge lets BuzzFeed fish to its little heart’s content. Because as sure as God made little green apples there is going to be no evidence that anyone tried to verify anything Steele said and there is going to be a lot of evidence that is was used by the Obama administration to have surveillance authorized of people in and on the fringe of the Trump campaign as well as launch the counterintelligence investigation that morphed into a criminal investigation with a special counsel.