February 9, 2018

Whitehouse Reinforces Feinstein Analysis of Steele Referral

Washington, DC – Senate Judiciary Committee Ranking Member Dianne Feinstein (D-CA) today released a minority view analysis on behalf all Democratic members of the Judiciary Committee of the Christopher Steele criminal referral sent last month by Senators Chuck Grassley (R-IA) and Lindsey Graham (R-SC).  Senator Sheldon Whitehouse released the following statement underscoring the points in Feinstein’s analysis:

The release by Senate Judiciary Committee Chairman Charles Grassley and Senator Lindsay Graham of the declassified memo accompanying his criminal referral of Christopher Steele demonstrates several things. 

First, it initially appeared that the evidence referred to the FBI was evidence obtained from the FBI, and the declassified version of the referral confirms this.  It is unusual, to say the least, to make a criminal referral to the FBI of evidence the FBI obviously already has in its possession.  

Second, the information provided in the referral fails to support the elements of a false-statements charge; indeed, in their cover letter, Senators Graham and Grassley could only offer that “statements the Committee has reason to believe Mr. Steele made” may have been false.  

The legal standard for prosecution of a false statement under 18 U.S. C. § 1001 is whether an individual knowingly provided false or misleading facts that are material to an investigation.  

With respect to falsity, the referral fails to provide support for the proposition that statements made by Steele were false at the time they were made—and a statement that is true when made does not become false merely because things change down the line.    

With respect to materiality, the referral fails to provide any evidence that the alleged statement was of the type capable of influencing a warrant application.  The fact that—at some point—Steele shared with the media, and thus the public, the same facts he shared with law enforcement suggests that he believed those facts to be true—not that his credibility or confidence in his evidence was in question.  Such consistency may make the substance of his information more—rather than less—reliable.  

The evidence in the referral may even fail the test of a “statement,” as the statute in question does not criminalize everything said to the FBI.  Ordinarily false statement cases emerge from substantive agent interviews memorialized in “302” reports.  The referral itself merely suggests falsity in “statements the Committee has reason to believe Mr. Steele made.”

Most important, when Republicans selectively declassify information to create a false narrative, the falsity of the narrative may be cured by the release of additional classified information to provide necessary context.  But that correction does not cure the harm to American intelligence operations or to our allies who may now hesitate to share intelligence for fear of their own sources and methods being disclosed in America’s partisan mud fights. 

The road of using selective, partisan declassification to score political points is a bad road to venture down.  Let’s hope that stops forever. 

Whitehouse, Ranking Member of the Senate Judiciary Crime and Terrorism Subcommittee, is a former United States Attorney and Rhode Island Attorney General.  In addition to the statement released today, Whitehouse published an op-ed Wednesday in the Washington Post calling for an end to Republicans’ effort to smear the FBI and undermine the work of Special Counsel Robert Mueller.


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