On Monday evening, the White House released an order instructing the Department of Justice and the Office of the Director of National Intelligence to declassify excerpts from an array of documents related to special counsel Robert Mueller’s investigation into Russian interference. He has every legal right to do so. But national security analysts and former intelligence officials say that such a demand isn’t just largely unprecedented; it’s potentially dangerous.
The Trump Administration said Monday that the disclosure was “for reasons of transparency” and was “at the request of a number of committees of Congress.” The affected documents include certain pages of the Foreign Intelligence Surveillance Act application related to former Trump foreign policy aide Carter Page, and a number of FBI interview reports related to the Page FISA application and larger Russia investigation. President Trump has been fixated for more than a year on proving that a wiretap of Page—after he left the Trump campaign—was part of a partisan effort to undermine his candidacy.
“The damage that is done is something that’s going to continue for several years.”
Jeffrey Ringel, The Soufan Group
Additionally, Monday’s White House order includes the public, unredacted release of a trove of text messages “relating to the Russia investigation” sent from and between former FBI director James Comey, former deputy FBI director Andrew McCabe, former FBI agent Peter Strzok, former FBI lawyer Lisa Page, and current Justice Department official Bruce Ohr. A more recent fixation of President Trump’s, Ohr’s wife has worked as a Russia analyst and contractor for the same intelligence firm that commissioned the infamous Steele dossier.
Though the White House has demanded specific pages from the Page FISA application, its other requests potentially cast a wide enough net to potentially expose law enforcement and intelligence methods and sources.
“I do not recall anything like this happening in the past,” says Jeffrey Ringel, director at the intelligence consultancy The Soufan Group, who spent 21 years as a national security specialist at the FBI. “Emails and text messages of investigators have been pulled into court previously by defense attorneys, but this would be much more broad and public. If law enforcement guaranteed that my identity would be kept secret as part of a deal, and then that bond is broken, it makes people lose faith in the system. The damage that would be done is something that’s going to continue for several years.”
Monday’s White House order came in the form of a press release rather than a formal directive, potentially leaving the DoJ and ODNI room to interpret it as a discretionary request for review, rather than a nonnegotiable command. That could help limit the fallout, if so.
“When the President issues such an order, it triggers a declassification review process that is conducted by various agencies within the intelligence community, in conjunction with the White House Counsel, to seek to ensure the safety of America’s national security interests,” a Department of Justice spokesperson said in a statement. “The Department and the Federal Bureau of Investigation are already working with the Director of National Intelligence to comply with the President’s order.”
Taken at face value, though, the request concerns former intelligence operatives. “It really depends on how this is executed,” says David Kennedy, CEO of TrustedSec and founder of the threat tracking firm Binary Defense, who formerly worked at the NSA and with the Marine Corps’ signal intelligence unit. “If there is the ability to blow intelligence sources, show inner workings of how information is collected, or anything that could damage the intelligence community, then this is really bad. What worries me is FISA docs are usually top secret, and methods of collection and evidence are in there. But if this is purely communications that don’t reveal too much, then it might not be too damaging.”
But while personal communications could potentially be revealed without a major impact on national security, so much haphazard declassification could still have collateral impacts on individual privacy.
Complicating the interpretation of the White House order is the question of whether the Trump Administration only requested specific pages from the FISA application to protect law enforcement sources and methods on other pages, or whether it’s selectively excluding information that validates the FBI’s Carter Page wiretap. Given how Trump associate Devon Nunes has misled the public about key aspects of the FISA application, hopes aren’t high.
“There are obvious privacy and investigative reasons that you might legitimately not want to publish certain pages,” says Julian Sanchez, a national security-focused research fellow at the Cato Institute. “But the problem with the incomplete way information has been dribbling out is that it might also be that that stuff confirms the utility of the surveillance. It’s an issue of selective disclosure and the potential to support a narrative through omission.”
Which is a shame, because there’s an argument to be made that the FISA process really is too secretive. Selectively declassifying self-serving information, though, doesn’t achieve that end. “On the one hand I would love to see the FISA process generally be more transparent,” Sanchez says. “But it’s clearly a terrible precedent for the White House to be picking and choosing specific investigations that personally affect the president. There are reasons that the White House is not in a position to weigh the equities impartially or expertly.”
“It’s clearly a terrible precedent for the White House to be picking and choosing specific investigations that personally affect the president.”
Julian Sanchez, Cato Institute
Democratic Senator Mark Warner of Virginia, the vice chairman of the Senate Intelligence Committee, told reporters on Tuesday that he has already seen a more complete version of the Page FISA application, and that he also worries about selective disclosure and the larger, long-term ramifications of this White House move. “I worry not just in terms of precedents it sets for this investigation, but I also worry about the men and women of our intelligence community whether they think some future president at the drop of a hat may decide to disclose contacts, information,” Warner said. It also, in turn, could make allies less willing to work with the US, if they thought their own classified efforts could be exposed on a whim.
The full scope of the situation won’t be clear until ODNI and the DoJ determine what to actually disclose based on the White House demand. But the request alone sets a precedent to at least attempt the same tactic in the future, and perhaps double down on it if the results aren’t to their liking.
“The President of the United States should not be involved at this level in an ongoing investigation,” the Soufan Group’s Ringel says. “This may be good for President Trump this week, but in the long term it’s going to have detrimental effects, because faith in the system has been weakened.”