It took a while, owing to delays over classified information, but Democrats on the House Intelligence Committee have finally released their rebuttal to the "FISA abuse" memo put forth earlier this month by committee Republicans. The GOP accused the Justice Department and FBI of relying heavily on the unverified Trump dossier in a secret court request to wiretap the sometime, volunteer Trump foreign policy adviser Carter Page. That is simply not true, say Democrats in their rebuttal.

"FBI and DOJ officials did not 'abuse' the Foreign Intelligence Surveillance Act (FISA) process, omit material information, or subvert this vital tool to spy on the Trump campaign," the Democratic memo declares. (All emphases are in the original.)

Specifically, Democrats say, the Justice Department "met the rigor, transparency, and evidentiary basis needed to meet the FISA's probable cause requirement" for a warrant on Page. Democrats say the Justice Department provided the court with four categories of information that together were "a multi-pronged rationale for surveilling Page." The four categories are:



* contemporaneous evidence of Russia's election interference;

* concerning Russian links and outreach to Trump campaign officials;

* Page's history with Russian intelligence; and

* [redacted] Page's suspicious activities in 2016, including in Moscow.

Remember that the standard for winning a warrant to wiretap a U.S. citizen in the United States is quite high, and that the purpose of the warrant application was to convince the FISA judges that Page specifically, not the Trump campaign generally or any group of people, was a Russian agent and was likely violating the law.

The first bullet point, about "Russia's election interference" — a reference to, say, evidence of Russian hacking of the Democratic National Committee or Russian internet trolling — doesn't say anything about Carter Page.

The second bullet point, an apparent reference to Russian contacts with George Papadapoulos, also doesn't say anything about Page.

The third category, referring to Page's business history in Moscow in the 2000s, and more specifically a 2013 case in which Russian agents tried unsuccessfully to recruit him, does of course focus on Page. As I wrote this month, by several accounts, Page's history was not a big part of the FISA application, but it was a part, and House Republicans should have included that fact in their memo. On the other hand, Page's history was history; it was not new in October 2016, when the first warrant was granted, and it's not clear why it would have triggered the DOJ to ask for, or the FISA court to approve, a wiretapping warrant.

The Democrats' fourth and last bullet point, referring to "Page's suspicious activities in 2016, including in Moscow," seems to be the category that would have given the warrant application its punch. Unlike the other bullets, it was both new and about Page specifically. And sure enough, it is the category in which Democrats concede that the Steele dossier was used.

"It is in this specific sub-section of the application that DOJ refers to Steele's reporting on Page and his alleged coordination with Russian officials," the Democratic memo says. The FISA application, according to Democrats, "made only narrow use of information from Steele's sources about Page's specific activities in 2016, chiefly his suspected July 2016 meetings in Moscow with Russian officials."

In addition, Democrats claim, "Steele's information about Page was consistent with the FBI's assessment of Russian intelligence efforts to recruit him and his connections to Russian persons of interest."

Saying Steele's information was "consistent" with the FBI's earlier assessment of Page is not the same as saying Steele's information was accurate. Indeed, the Democratic memo goes on to recount a key episode from the dossier in which Page allegedly met with Igor Sechin, head of Rosneft, Russia's giant state-owned oil company, and also met separately with Igor Divyekin, a top official in the Putin government, during that July 2016 trip to Moscow. Steele reported that Sechin offered to give Page millions of dollars in return for ending U.S. sanctions against Russia. As far as I can tell, in conversations with congressional investigators, the FBI has never claimed that that episode has been confirmed. Page's Moscow trip, of course, was widely known at the time; it was covered in the press as it happened. But the Sechin and Divyekin meetings, and the money-for-sanctions offer — truly explosive allegations, the kind that, if true, would certainly warrant surveillance — remain unconfirmed to this day.

The Democratic memo also says the Justice Department told the FISA court that Divyekin told Page that the Kremlin had "kompromat" on Hillary Clinton and mentioned "the possibility of its being released to [the Trump] campaign." Democrats say that "closely tracks what other Russian contacts were informing another Trump foreign policy advisor, George Papadopoulos." Again, saying it "closely tracks" something else is not to say it is an accurate description of Page's Moscow visit, and Democrats do not claim that it is.

Next, Democrats write that "In subsequent FISA renewals, DOJ provided additional information obtained through multiple independent sources that corroborated Steele's reporting."

First, that says DOJ did not provide such information in the original warrant. Then, the sentence is followed by three bullet-point paragraphs which are entirely blacked out. We don't know what they say, but the summary sentence seems to suggest that after the original warrant was granted, the Justice Department verified Steele's allegations.

That is not what the Justice Department and FBI have told congressional investigators. Indeed, in a response Saturday evening, House Intelligence Committee Republicans said, "At the time of the initial application, all of the Steele dossier's specific claims about Page — including that he met with Igor Sechin and Igor Divyekin in Moscow in July 2016 — were uncorroborated by any independent source, and they remain unconfirmed."



In sum, it appears that of the four bullet points listed by Democrats to support the most important assertion in their memo, three would not be sufficient to win a warrant on Page, and the fourth is — yes — the unconfirmed allegations in the dossier. Democrats say the FISA warrant application made just "narrow" use of the dossier, while Republicans say the application made extensive use of the dossier. (And not just Republicans on the House Intelligence Committee, but also the Senate Judiciary Committee, which conducted a separate investigation and concluded the dossier's allegations made up "the bulk" of the application.) We won't know who is right definitively until the application is released to the public, but it seems hard to believe a warrant would have been approved absent the dossier's allegations.

On to other parts of the Democratic memo. The next big point is a refutation of an assertion that Republicans did not make in their original memo. The Democratic memo says at one point that, "Christopher Steele's raw intelligence reporting did not inform the FBI's decision to initiate its counterintelligence investigation in late July 2016." At another point in the memo, Democrats say that "Steele's reporting… played no role in launching" the investigation.

But the Republican memo did not say that it did. Indeed, the GOP memo said, "The Papadopoulos information triggered the opening of of an FBI counterintelligence investigation in late July 2016…" There is some debate about the precise beginning of the FBI investigation, and whether it is of much importance given later reliance on the dossier. But the fact is, the Republican memo did not claim that Steele's raw intelligence informed the decision to begin the investigation. So the Democratic memo has knocked down a straw man.

At another point, the Democratic memo declares, "FISA was not used to spy on Trump or his campaign." As proof, it notes, correctly, that the FISA warrant came after Page had left the campaign. But Republicans argue, with some merit, that the warrant not only gave the FBI the authority to tap Page's phone going forward, but also to view his emails, texts, and other electronic communications going far back — in other words, back to the time Page was a (tangential) part of the Trump campaign and might have communicated with others in the campaign. So the Democratic point is not as strong as it might seem.

Then there is the much-argued question of whether the FBI told the FISA court that Steele was working for the Clinton campaign and the Democratic Party. The Republican memo said this: "Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele's efforts."

That appears to be true. The Democratic memo argues that, "DOJ was transparent with the court about Steele's sourcing" and, for the first time, supplies the text of the footnote in the FISA application that dealt with who was behind the dossier. The footnote says Steele



was approached by an identified U.S. Person, who indicated to Source #1 [Steele] that a U.S.-based law firm had hired the identified U.S. Person to conduct research regarding Candidate #1's ties to Russia. (The identified U.S. Person and Source #1 have a long-standing business relationship.) The identified U.S. Person hired Source #1 to conduct this research. The identified U.S. person never advised Source #1 as to the motivation behind the research into Candidate #1's ties to Russia. The FBI speculates that the identified U.S. Person was likely looking for information that could be used to discredit Candidate #1's campaign.

In the new memo's footnotes, Democrats say that the "identified U.S. Person" was Glenn Simpson of Fusion GPS, "Source #1" was Steele, the "U.S.-based law firm" was the Democratic firm Perkins Coie, and "Candidate #1" was Donald Trump. Democrats say that was a "transparent" way to inform the FISA court that the Clinton campaign and the DNC were behind the dossier. Make your own judgment. (Beyond the sheer circuitousness of the "FBI speculates" explanation, also keep in mind that in 2016 there were non-Democrats who wanted to discredit the Trump campaign; a pre-dossier anti-Trump project involving Fusion GPS was financed by the conservative Washington Free Beacon.) In any case, the fact remains that the Republican memo said the FISA application did not "disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele's efforts." And it did not.

Democrats also argue that in the wiretapping application the Justice Department "explained the FBI's reasonable basis for finding Steele credible." That refers to Steele's work with the bureau a few years earlier in the world soccer scandal investigation. But of course, the question for the court was not whether Steele was credible; it was whether Steele's sources were credible. And the FBI did not know who they were. Also, Democrats note that "The FBI has undertaken a rigorous process to vet allegations from Steele's reporting, including with regard to Page." A footnote says that information came from interviewing former FBI deputy director Andrew McCabe. But the memo does not say whether the vetting process has actually confirmed the allegations.

[House Intel Chairman Devin Nunes shares 'point by point' refutation of Democratic memo]

Speaking of McCabe, a big controversy surrounding the original Republican memo was the assertion that McCabe "testified before the committee in December 2017 that no surveillance warrant would have been sought from the [FISA court] without the Steele dossier information." Democrats immediately denounced that statement as false. "He didn't say that," Intelligence Committee member Eric Swalwell told CNN on the day the Republican memo was released.

Now, however, the Democratic memo makes no statement one way or the other about McCabe's assertion. Does that mean, then, that the Republican memo accurately characterized what McCabe said? Without the interview transcript, it's impossible to say. But it does mean that in their official, considered rebuttal, Democrats are not challenging it.

So there it is. Yes, there were flaws in the original Republican memo, like failing to mention Carter Page's history. But despite their early protests, Democrats have not come up with a terribly effective rebuttal.