Add this surprising entry to the growing list of those issuing subpoenas for insight into the imbroglio involving President Donald Trump and the Russians: BuzzFeed.
The online media outlet sent formal demands Thursday to the CIA, the FBI and the Office of Director of National Intelligence, seeking details on the distribution of an unverified intelligence dossier about Trump said to have been in the possession of Russian intelligence during last year’s presidential campaign, POLITICO has learned.
BuzzFeed is also seeking testimony from fired FBI Director James Comey, as well as former DNI James Clapper and CIA Director John Brennan, said a source familiar with the subpoenas.
BuzzFeed issued the demands for documents and testimony in connection with a libel suit the site is facing from Russian technology executive Aleksej Gubarev over BuzzFeed’s decision to publish the salacious intelligence dossier in its entirety in January.
Gubarev and two of his companies were mentioned in the document the website put online. Claiming that the references were inaccurate and defamatory, Gubarev and the firms filed suit in February in a county court in Florida. Buzzfeed had the case transferred to a federal court in Miami and wanted it transferred again to a federal court in Manhattan, but the judge handling the suit in Miami declined.
At about the same time the suit was filed, BuzzFeed blacked out from the document Gubarev’s name and the names of his firms. However, the dossier had already been posted for several weeks in unredacted form.
The subpoenas seek information about the existence and scope of the federal government’s investigation into the dossier, initially compiled by former British spy Christopher Steele. The requests for documents say the information could bolster BuzzFeed’s claim that publication of the document was protected by the fair report privilege, which can immunize reports based on official government records.
A spokesman for BuzzFeed News, Matt Mittenthal, confirmed that the media outlet is seeking to use the court process to nail down details of when and to whom information on the dossier was distributed.
“As part of the discovery process, we have subpoenaed key federal agencies for evidence that the dossier was circulating at the highest levels of government, and therefore clearly in the public interest,” Mittenthal said.
BuzzFeed also subpoenaed several individuals, although the details of those requests were not immediately available.
Fired FBI Director James Comey told the Senate Intelligence Committee last month that he briefed President-elect Trump on the dossier during a Jan. 6 meeting at Trump Tower in New York.
“The IC [intelligence community] leadership thought it important, for a variety of reasons, to alert the incoming President to the existence of this material, even though it was salacious and unverified,” Comey said in his written statement. “Among those reasons were: (1) we knew the media was about to publicly report the material and we believed the IC should not keep knowledge of the material and its imminent release from the President-Elect; and (2) to the extent there was some effort to compromise an incoming President, we could blunt any such effort with a defensive briefing.”
Comey said he and then-Director of National Intelligence James Clapper agreed Comey would handle that part of the briefing one-on-one with Trump “to minimize potential embarrassment to the President-Elect.” The ex-FBI chief declined to provide details about the content of the briefing, but a senior law enforcement official said it was about the Steele dossier.
A Justice Department spokeswoman declined to comment on the subpoenas.
BuzzFeed’s effort to use the subpoena process to get information about the dossier seems likely to be an uphill battle, although the move may give them some advantage over a slew of people and organizations seeking similar information under the Freedom of Information Act.
The website will now have to navigate something known as the Tuohy process, which takes its name from a 1951 Supreme Court case about demands for federal government information in suits or prosecutions where the United States is not a party.
Experts said it’s possible that process will yield more information than Freedom of Information Act lawsuits that are already pending. The process won’t force the government to declassify information, but could yield more detail on how the government circulated the dossier and why, lawyers said.
“In general, a subpoena going through the Tuohy process is more likely to be successful” than a FOIA request, said Daniel Taylor, an attorney with Denver law firm Bartlit Beck. He said some agencies treat such demands simply as FOIA requests, but may process them faster.
Former Justice Department attorney Robert Foster said it’s possible BuzzFeed may be able to get direct testimony from witnesses through the Tuohy process. That isn’t available under FOIA which is limited to records.
The real difference is access to a body,” said Foster, now in private practice in Estes Park, Colorado. “As a practical matter most of the time, if all you’re seeking are documents, there’s no that much difference between FOIA and a subpoena except you can get a judge involved more quickly… A subpoena doesn’t guarantee you anything.”