The role of reporters is taking on added importance in federal court battles over the infamous Russia dossier that leveled unverified charges of collusion against the Donald Trump campaign.
In U.S. District Court for the District of Columbia, Fusion GPS, the dossier’s financier via the Democratic Party and the Hillary Clinton campaign money, is fighting a House committee chairman’s bid to find out if the opposition research firm paid journalists.
In U.S. District Court in Florida, a self-described dossier victim wants a judge to order the news website BuzzFeed, which published the dossier in full, to disclose who gave it to them.
The cases underscore how a Moscow-sourced memorandum created as opposition research against Donald Trump in the presidential campaign last year often dictates the debate about politics and reporters’ rights in Washington.
Rep. Devin Nunes, California Republican and chairman of the House Permanent Select Committee on Intelligence, signed a subpoena to force a bank to turn over Fusion’s financial records. He wants to know who paid for the dossier, which was written in a series of 18 memos by former British spy Christopher Steele. He relied almost exclusively on unidentified Kremlin sources.
Fusion went to federal court to block the move, but the law firm Perkins Coie LLP, whose partner Marc E. Elias is the Clinton’s campaign’s general counsel, intervened. It filed a letter acknowledging it had paid Fusion for the dossier on behalf of Democrats. Fusion and Mr. Nunes then worked out an agreement on access to some of the firm’s financial records.
But the dispute heightened again Friday as Fusion renewed its request for a judge to block the subpoena because Mr. Nunes wants more information. The widened net includes the names of journalists and law firms that Fusion might have paid.
“It is contrived to substitute for the ridiculous notion that Intervenor [the House committee] can demand documents in an overbroad subpoena from a third party and not explain what it is looking for or why,” said a memorandum filed by Fusion’s law firm, Zuckerman Spaeder LLP, for U.S. District Judge Tanya Chutkan.
On the demand for information on any payments to journalists, Fusion cited First Amendment protection and confidentiality. It did not deny it had paid journalists.
“And they are not pertinent, as they are not related to Russia or Donald Trump,” Fusion argues. “In attempting to justify the overbroad subpoena earlier, Intervenor could have, but of course did not, argue the relevance to its inquiry of any such payments.”
In the court battle with Mr. Nunes, Fusion has likened itself to a group of journalists with all associated rights. Its founders include former Wall Street Journal reporters Glenn Simpson and Peter Fritsch.
Mr. Fritsch filed a declaration, saying: “Our techniques and investigative tools for our research and investigation go beyond standard open-source methods. Fusion GPS has an extensive network of domestic and international contacts, built up over many years of reporting.”
In Florida, Russian technology entrepreneur Aleksej Gubarev, chief of Internet-platform provider XBT Holding, is suing BuzzFeed for libel.
The Steele dossier accused Mr. Gubarev of overseeing a botnet operation that flooded Democrats’ computers with porn, viruses and spyware. It said the operation was financed by the FSB, Russia’s intelligence agency.
Mr. Steele has acknowledged in a London libel case brought by Mr. Gubarev that he never confirmed the information and just passed it along to Fusion GPS as his final memo in December.
Sources of controversy
Fusion, which briefed a number of Washington reporters on Mr. Steele’s unverified assertions, has said it was not the source of BuzzFeed’s copy.
Mr. Gubarev’s attorneys are trying to find out who was and whether that person warned the editors that the document was not verified.
“And as you might imagine, if you are an online storage company, to have the accusation that you are an FSB agent — former KGB, now FSB — that you are essentially co-opted by the FSB and you are launching hacking against the Democratic Party, doesn’t do wonders for your business,” attorney Evan Fray-Witzer argued at a September hearing.
He added: “There is only one way to know what the motivation was in giving the document and what was said to BuzzFeed when they received the document.”
Katherine M. Bolger, BuzzFeed’s attorney, said various states protect source confidentiality through so-called shield laws.
What’s more, since the dossier was the subject of a federal investigation when it was posted in January, BuzzFeed had complete legal freedom to report on it whether true or not, she argued.
“If the United States government is investigating allegations, the press is free to report on them, period,” Ms. Bolger said.
Ms. Bolger is demanding XBT data to determine if any of the Russian hacking on the Democrats went through the company’s servers.
A federal judge’s ruling is expected this month.
BuzzFeed has filed requests with federal agencies for documents detailing the FBI’s dossier handling.
In his London court filing, Mr. Steele told of how he traveled to Washington at Fusion’s request and briefed Washington reporters in September during the campaign.
He said through his attorneys that he gave explicit instructions that the information from Kremlin sources must be verified and that they should not quote the dossier.
“The second defendant [Mr. Steele] understood that the information provided might be used for the purpose of further research but would not be published or attributed,” the filing stated. “None of the journalists raised any objections.”
Yet, after the briefing, some of Mr. Steele’s claims did surface in press reports and Democratic talking points to buttress the charge that the Trump campaign colluded with Moscow to interfere in the election.
The McCain connection
Senate Armed Services Committee Chairman John McCain, Arizona Republican, is one person known to have possessed a dossier hard copy through a complex set of maneuvers with Mr. Steele. The senator ended up handing a copy to then-FBI Director James B. Comey weeks after the election when Mr. Trump was president-elect.
A chronology of events would indicate that Mr. Comey had acquired the copy, during the election campaign, from a source not yet identified publicly.
Mr. McCain denied being BuzzFeed’s source.
“I gave it to no one except for the director of the FBI. I don’t know why you’re digging this up now,” Mr. McCain told The Daily Caller last month.
The Steele court document, which was filed in the Florida case last month, detailed how Mr. McCain acquired the copy. A business associate of Mr. Steele’s — Andrew Wood, a former British ambassador to Moscow — informed the senator of its existence.
Mr. McCain then dispatched an aide, David Kramer, to Surrey, England, to meet with Mr. Steele on Nov. 28. Mr. Kramer is a former State Department assistant secretary and scholar at Mr. McCain’s think tank in Arizona.
Sometime later, Mr. Steele sent the dossier in a secure mode to the senator, who hand-delivered it to Mr. Comey. He later provided his last memo, in December, to Mr. McCain, Fusion GPS and the United Kingdom government.
Here is how Mr. Steele described the handoff in his latest court filing: “The defendants [Mr. Steele, Orbis Business Intelligence] understood that the contents of the memoranda would be treated in the strictest confidence and would only be used by Senator McCain in his official capacity for the sole purpose of analyzing, investigating and verifying their contents to enable such action to be taken as necessary for the purposes of protecting US national security.
“[Mr. Steele] expressly informed Mr. Kramer that the pre-election memoranda were only to be used for this exclusive purpose before he showed Mr. Kramer any of the memoranda. Mr. Kramer was not at this time provided with copies of the memoranda that had been prepared as at that date, but was shown copies.”
A Washington Times analysis of Mr. Steele’s core charges against individuals such as Mr. Trump and Mr. Gubarev show that none has been confirmed publicly by any government investigation.