Today my lawyers Brad Moss and Mark S. Zaid, received the following email from the FBI’s lawyers:
The FBI advises that it no longer intends to rely on a Glomar response with respect to your request regarding information leaked to Rudy Giuliani. The FBI is currently considering your request in light of the testimony you referenced and hopes to be able to provide a response in the near future.
We will be in touch with more information as it becomes available.
The request to which they refer, is the lawsuit that I jointly filed with the James Madison project on December 20th, 2016, over non-response to a FOIA request of Nov 30th, 2016.
The lawsuit was reported at the time in the Hill and Politico. Patriot lawyers Mark and Brad represent me and the James Madison Project, pro bono.
Our lawsuit refers to, inter alia, politicized leaks from the FBI to Rudy Giuliani:
COUNT SIX – FBI
47. By letter dated November 30, 2016, JMP submitted to FBI a FOIA request. The FOIA request specifically sought copies of records, including cross-references, memorializing crime reports filed regarding, investigations conducted into and/or disciplinary or legal actions taken as a result of unauthorized leaks of U.S. Government information to non-U.S. Government individuals.
- Information or documentation provided directly or indirectly to Mr. Giuliani;
- Information or documentation provided directly or indirectly to LTG Flynn;
- Information or documentation provided to unauthorized third parties regarding the investigations into alleged mishandling of classified information by Secretary Clinton and/or her senior aides;
- Information or documentation provided to unauthorized third parties regarding the investigations into alleged criminal actions by the Clinton Foundation; and
- Information or documentation provided to unauthorized third parties regarding the investigation into a computer server linking Trump Tower to a Russian financial institution.
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In his testimony before the Senate Judiciary Committee, James Comey responded to a question about the leaks that named Giuliani:
LEAHY: Let me ask you this. During your investigation into Hillary Clinton’s emails, a number of surrogates like Rudy Giuliani claimed to have a pipeline to the FBI. He boasted that, and I quote, numerous agents talk to him all the time. (Inaudible) regarding the investigation. He even said that he had — insinuated he had advanced warning about the emails described in your October letter. Former FBI agent Jim Kallstrom made similar claims.
Now, either they’re lying, or there’s a serious problem within the bureau. Anybody in the FBI during this 2016 campaign have contact with Rudy Giuliani about — about the Clinton investigation?
COMEY: I don’t know yet. But if I find out that people were leaking information about our investigations, whether it’s to reporters or to private parties, there will be severe consequences.
LEAHY: Did you know of anything from Jim Kallstrom?
COMEY: Same answer. I don’t know yet.
LEAHY: Do you know any about — from other former agents?
COMEY: I don’t know yet. But it’s a matter that I’m very, very interested in.
LEAHY: But you are looking into it?
The FBI is, therefore, about to send us a response which won’t say “we can neither confirm nor deny” this.
Obviously, I cannot be certain what the FBI’s lawyers will tell our lawyers. But there is a parallel instance where Jason Leopold of Vice made a FOIA request to the FBI over an investigation into Trump’s comments in July: “Russia, if you’re listening….” as he called for Russia to release Clinton’s emails.
The FBI response to that changed after Comey’s first testimony. Their reply now includes these paragraphs:
One of Plaintiffs’ requests to the FBI (the “Russia Request”) sought “any and all records, including investigative records,” referring to the following statements attributed to then-candidate, now-President Trump on July 27, 2016: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.”
“the FBI expects that virtually all, if not all, of the documents responsive to the Russia Request will be exempt from disclosure in their entirety under Exemption 7(A), which applies to law-enforcement records the disclosure of which “could reasonably be expected to interfere with enforcement proceedings.”
“10. Because of the existence of an active, ongoing investigation, the FBI anticipates that it will assert Exemption 7(A), on a categorical basis, to withhold all records that are responsive to the Russia Request, because releasing any responsive records (or portions thereof) “could reasonably be expected to interfere with enforcement proceedings.”
This does appear to confirm there is an active investigation into Donald Trump’s request to Russia to release Hillary Clinton’s emails.
Republicans on the various committees have concentrated on alleged “leaks” from law enforcement about the Russia probe, going on about their supposed criminality. They may well find themselves unpleasantly surprised when rogue FBI agents, leaking to Trump campaign senior adviser Rudy Giuliani, prove to be under investigation – if indeed that is what their response tells us.
We don’t yet know if it will.
It was these comments of Giuliani’s that prompted his inclusion in our FOIA request:
Rudy Giuliani said Friday that he knew the FBI planned to review more emails tied to Hillary Clinton before a public announcement about the investigation last week, confirming that the agency leaked information to Donald Trump’s presidential campaign.
Last week, however, Giuliani said, “The other rumor that I get is that there’s a kind of revolution going on inside the FBI…. I know that from former agents. I know that even from a few active agents.”
So, which is it? Does Giuliani get leaks from active FBI agents or doesn’t he?
The James Madison Project and I are hoping to find out the answer to that question soon.
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