The FBI has responded to the letter from House Intelligence Committee Chairman Devin Nunes that I posted here yesterday. In a self-advertised act of magnanimity to Congress, the Department of Justice and the FBI will make an “extraordinary accommodation” to the committee by allowing its members access to Foreign Intelligence Surveillance Act applications and renewals. It’s very big of them.
However, there are limits. With respect to Nunes’s specific demand for the electronic communication — “EC” in investigative jargon — that officially kicked off the counterintelligence “collusion” investigation, the Department of Justice and the FBI seem to have drawn the line. The demand for the document, let us recall, dates back to one of the committee’s August 2017 subpoenas. In his letter Nunes emphasized that the EC is not highly classified and that the FBI has “not been shy about leaking to the press information that the Department and the Bureau refuse to share with Congress.”
Apparently declining to produce an unredacted copy of the EC to the committee, Assistant Attorney General Stephen Boyd engages in indirection. He beats around the bush, saying the department has sought to act in a “manner consistent with relevant legal precedents“ with respect to certain documents. “To date, that accommodation has occurred through briefings and numerous in camera reviews of classified materials,” the letter states, referring to response to the committee’s “legitimate oversight inquiries.” Now they will go one step beyond with respect to the FISA documents, but Boyd tacitly draws the line at the EC.
When a lawyer refers to “legal precedents,” he is usually talking about case law. I am quite sure that is not how Boyd is using the term. I infer that he means “past practice.”
Here, however, we are dealing with unique circumstances involving an investigation reaching into a presidential campaign. Indeed, Boyd himself cites “unique facts and circumstances” supporting the “extraordinary accommodation” involved in making the FISA documents available to the committee for review. The same rationale would equally support full disclosure of the EC to the committee. Past practice (without more) can hardly justify withholding an unredacted copy of the EC from the committee’s review in this matter.
Kim Strassel originally drew my attention to the Nunes letter in her weekly Wall Street Journal column yesterday. Kim is the probable author of today’s follow-up editorial “A broken promise” (“In the apparent absence of that good faith, we hope Congress is willing to use all its powers, including contempt and impeachment if necessary, to persuade Mr. Wray and Mr. Rosenstein it is in their interests to make good on the FBI’s promise of transparency and responsiveness”).
The Washington Examiner’s Daniel Chaitin embeds the DoJ/FBI response to the Nunes letter in his story on it. I’m embedding it below.