FBI Director James Comey, Director of National Intelligence James Clapper and CIA Director John Brennan at a House hearing in February, 2016. (Joe Gromelski/Stars and Stripes)
Well, well, well. The bipartisan Beltway establishment has apparently had its fill of this “Trump colluded with Russia” narrative — the same narrative the same establishment has lustily peddled for nearly two years. The Obama administration recklessly chose to deploy the government’s awesome counterintelligence powers to investigate — and, more to the point, to smear — its political opposition as a Kremlin confederate. Now that that this ploy has blown up on the Justice Department and the FBI, these agencies — the ones that went out of their way, and outside their guidelines, to announce to the world that the Trump campaign was under investigation — want you to know the president and his campaign were not investigated at all, no siree.
What could possibly have made you imagine such a thing?
And so, to douse the controversy with cold water, dutifully stepping forward in fine bipartisan fettle are the Obama administration’s top intelligence official and two influential Capitol Hill Republicans who evidently pay little attention to major testimony before their own committees.
Former National Intelligence director James Clapper was first to the scene of the blaze. Clapper concedes that, well, yes, the FBI did run an informant — “spy” is such an icky word — at Trump campaign officials; but you must understand that this was merely to investigate Russia. Cross his heart, it had nothing to do with the Trump campaign. No, no, no. Indeed, they only used an informant because — bet you didn’t know this — doing so is the most benign, least intrusive mode of conducting an investigation.
Me? I’m thinking the tens of thousands of convicts serving lengthy sentences due to the penetration of their schemes by informants would beg to differ. (Mr. Gambino, I assure you, this was just for you own good . . .) In any event, I’ll leave it to the reader to imagine the Democrats’ response if, say, the Bush administration had run a covert intelligence operative against Obama 2008 campaign officials, including the campaign’s co-chairman. I’m sure David Axelrod, Chuck Schumer, the New York Times, and Rachel Maddow would chirp that “all is forgiven” once they heard Republicans punctiliously parse the nuances between investigating campaign officials versus the campaign proper; between “spies,” “informants,” and other government-directed covert operatives.
Then there are Senator Marco Rubio (R., Fla.) and Representative Trey Gowdy (R., S.C.), General Clapper’s fellow fire extinguishers.
Rubio is a member in good standing of that Washington pillar, the Senate Intelligence Committee, which has had about as much interest in scrutinizing the highly irregular actions of intelligence and law-enforcement officials in the Clinton and Russia probes as Gowdy’s Benghazi committee had in revisiting Republican ardor for Obama’s unprovoked war on Moammar Qaddafi. (That would be: roughly zero interest.)
Rubio told ABC News that he has seen “no evidence” that the FBI was gathering information about the Trump campaign. Rather, agents “were investigating individuals with a history of links to Russia that were concerning.” The senator elaborated that “when individuals like that are in the orbit of a major political campaign in America, the FBI, who is in charge of counterintelligence investigations, should look at people like that.”
Gee, senator, when you were carefully perusing the evidence of what the FBI was doing, did you ever sneak a peek at whatthe FBI said it was doing?
May I suggest, for example, the stunning public testimony by then-director James Comey on March 20, 2017, before the House Intelligence Committee — perhaps Representative Gowdy, who sits on that committee, could lend you the transcript, since he appears not to be using it. Just so we’re clear, this is not an obscure scrap of evidence buried within volumes of testimony. It is the testimony that launched the Mueller probe, and that sets (or, better, fails to set) the parameters of that probe — a flaw the nation has been discussing for a year.
Comey’s House testimony was breathtaking, not just because it confirmed the existence of a classified counterintelligence investigation, but because of what the bureau’s then-director said about the Trump campaign (my italics):
I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. . . .
That is an unambiguous declaration that the FBI was investigating the Trump campaign. That is why, for nearly two years, Washington has been entranced by the specter of “Trump collusion with Russia,” not “Papadopoulos collusion with Russia.” A campaign, of course, is an entity that acts through the individuals associated with it. But Comey went to extraordinary lengths to announce that the FBI was not merely zeroing in on individuals of varying ranks in the campaign; the main question was whether the Trump campaign itself — the entity — had “coordinated” in Russia’s espionage operation.
Gowdy’s fire truck pulled into Fox News Tuesday night for an interview by Martha MacCallum. An able lawyer, the congressman is suddenly on a mission to protect the Justice Department and the FBI from further criticism. So, when Ms. MacCallum posed the question about the FBI spying on the Trump campaign, Gowdy deftly changed the subject: Rather than address the campaign, he repeatedly insisted that Donald Trump personally was never the “target” of the FBI’s investigation. The only “target,” Gowdy maintains, was Russia.
This is a dodge on at least two levels.
First, to repeat, the question raised by the FBI's use of an informant is whether the bureau was investigating the Trump campaign. We’ll come momentarily to the closely connected question of whether Trump can be airbrushed out of his own campaign — I suspect the impossibility of this feat is why Gowdy is resistant to discussing the Trump campaign at all.
It is a diversion for Gowdy to prattle on about how Trump himself was not a “target” of the Russia investigation. As we’ve repeatedly observed (and as Gowdy acknowledged in the interview), the Trump-Russia probe is a counterintelligence investigation. An accomplished prosecutor, Gowdy well knows that “target” is a term of art in criminal investigations, denoting a suspect who is likely to be indicted. The term is inapposite to counterintelligence investigations, which are not about building criminal cases but about divining and thwarting the provocative schemes of hostile foreign powers. In that sense, and in no other, the foreign power at issue — here, Russia — is always the “target” of a counterintelligence probe; but it is never a “target” in the technical criminal-investigation sense in which Gowdy used the term . . . unless you think we are going to indict a country.
Moreover, even if we stick to the criminal-investigation sense of “target,” Gowdy knows it is misleading to emphasize that Trump is not one. Just a few short weeks ago, Gowdy was heard pooh-poohing as “meaningless” media reporting that Trump had been advised he was not a “target” of Special Counsel Robert Mueller’s probe (which is the current iteration of the Russia investigation). As the congressman quite correctly pointed out, if Trump is a subject of the investigation — another criminal-law term of art, denoting a person whose conduct is under scrutiny, but who may or may not be indicted — it should be of little comfort that he is not a “target”; depending on how the evidence shakes out, a subject can become a target in the blink of an eye.
So, apart from the fact that Gowdy is dodging the question about whether the Trump campaign was being investigated, his digression about “targets” is gibberish. Since the Obama administration was using its counterintelligence powers (FISA surveillance, national-security letters, unmasking identities in intelligence reporting, all bolstered by the use of at least one covert informant), the political-spying issue boils down to whether the Trump campaign was being monitored. Whether Trump himself was apt to be indicted, and whether threats posed by Russia were the FBI’s focus, are beside the point; in a counterintelligence case, an indictment is never the objective, and a foreign power is always the focus.
Withholding Information from Trump
Second, if Gowdy has been paying attention, he must know that, precisely because the Trump campaign was under investigation, top FBI officials had qualms of conscience over Comey’s plan to give Trump a misleading assurance that he personally was not under investigation. If this has slipped Gowdy mind, perhaps Rubio could lend him the transcript of Comey’s testimony before the Senate Intelligence Committee — in particular, a section Rubio seems not to remember, either.
A little background. On January 6, 2017, Comey, Clapper, CIA director John Brennan, and NSA chief Michael Rogers visited President-elect Trump in New York to brief him on the Russia investigation. Just one day earlier, at the White House, Comey and then–acting attorney general Sally Yates had met with the political leadership of the Obama administration — President Obama, Vice President Biden, and national-security adviser Susan Rice — to discuss withholding information about the Russia investigation from the incoming Trump administration.
Ms. Rice put this sleight-of-hand a bit more delicately in her CYA memo-to-file about the Oval Office meeting (written two weeks after the fact, as Rice was leaving her office minutes after Trump’s inauguration):
President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia. [Emphasis added.]
It is easy to understand why Obama officials needed to discuss withholding information from Trump. They knew that theTrump campaign — not just some individuals tangentially connected to the campaign — was the subject of an ongoing FBI counterintelligence probe. Indeed, we now know that Obama’s Justice Department had already commenced FISA surveillance on Trump campaign figures, and that it was preparing to return to the FISA court to seek renewal of the surveillance warrants. We also know that at least one informant was still deployed. And we know that the FBI withheld information about the investigation from the congressional “Gang of Eight” during quarterly briefings from July 2106 through early March 2017. (See Comey testimony March 20, 2017, questioning by Representative Elise Stefanik (R., N.Y.).) Director Comey said Congress’s most trusted leaders were not apprised of the investigation because “it was a matter of such sensitivity.” Putting aside that the need to alert Congress to sensitive matters is exactly why there is a Gang of Eight, the palpable reason why the matter was deemed too “sensitive” for disclosure was that it involved the incumbent administration’s investigation of the opposition campaign.
Clearly, the Obama officials did not want Trump to know the full scope of their investigation of his campaign. But just as important, they wanted the investigation — an “insurance policy” that promised to hamstring Trump’s presidency — to continue.
So, how to accomplish these objectives? Plainly, the plan called for Comey to put the new president at ease by telling him he was not a suspect. This would not have been a credible assurance if Comey had informed Trump that his campaign had been under investigation for months, suspected of coordinating in Russia’s cyber-espionage operation. So, information would be withheld. The intelligence chiefs would tell Trump only about Russia’s espionage, not about the Trump campaign’s suspected “coordination” with the Kremlin. Then, Comey would apprise Trump about only a sliver of the Steele dossier — just the lurid story about peeing prostitutes, not the dossier’s principal allegations of a traitorous Trump-Russia conspiracy.
As I’ve previously recounted, this did not sit well with everyone at the FBI. Shortly before he met with Trump, Comey consulted his top FBI advisers about the plan to tell Trump he was not a suspect. There was an objection from one of Comey’s top advisers — we don’t know which one. Comey recounted this disagreement for the Senate Intelligence Committee (my italics):
One of the members of the leadership team had a view that, although it was technically true [that] we did not have a counterintelligence file case open on then-President-elect Trump[,] . . . because we’re looking at the potential . . . coordination between the campaign and Russia, because it was . . . President-elect Trump’s campaign, this person’s view was, inevitably, [Trump’s] behavior,[Trump’s] conduct will fall within the scope of that work.
Representative Gowdy and Senator Rubio might want to read that testimony over a few times.
They might note that Comey did not talk about “potential coordination between Carter Page or Paul Manafort and Russia.” The director was unambiguous: The FBI was investigating “potential coordination between the Trump campaign and Russia.” With due respect to Gowdy, the FBI did not regard Russia as the “target”; to the contrary, Comey said the focus of the investigation was whether Donald Trump’s campaign had coordinated in Russia’s election interference. And perspicaciously, Comey’s unidentified adviser connected the dots: Because (a) the FBI’s investigation was about the campaign, and (b) the campaign was Trump’s campaign, it was necessarily true that (c) Trump’s own conduct was under FBI scrutiny.
Director Comey’s reliance on the trivial administrative fact that the FBI had not written Trump’s name on the investigative file did not change the reality that Trump, manifestly, was a subject of the “Crossfire Hurricane” investigation. If Trump were not a subject of the investigation, there would be no conceivable justification for Special Counsel Mueller to be pushing to interview the president of the United States. If Trump were not a subject of the investigation, Trump’s political opponents would not have spent the last 18 months accusing him of obstruction and demanding that Mueller be permitted to finish his work.
In the interview with Ms. MacCallum, Representative Gowdy further confused matters by stressing Trump’s observation, in a phone conversation with Comey on March 30, 2017, that it would be good to find out if underlings in his campaign had done anything wrong. This, according to Gowdy, means Trump should be pleased, rather than outraged, by what the FBI did: By steering an informant at three campaign officials, we’re to believe that the bureau was doing exactly what Trump suggested.
Such a specious argument. So disappointing to hear it from someone who clearly knows better.
First, the informant reportedly began approaching campaign officials in July 2016. It was nine months later, well after the election, when President Trump told Comey that if would be good if the FBI uncovered any wrongdoing by his “satellites.” Trump was not endorsing spying during the campaign; the campaign was long over. The president was saying that it would be worth continuing the FBI’s Russia investigation in order to root out any thus-far-undiscovered wrongdoing — but only if the FBI informed the public that Trump was not a suspect (an announcement Comey declined to make).
Second, Gowdy’s argument assumes something that is simply not true: namely, that the Trump campaign was not under investigation. As we’ve seen, Comey testified multiple times that the FBI was investigating the Trump campaign for possible coordination with Russia. The bureau was not, as Gowdy suggests, merely investigating a few campaign officials for suspicious contacts with Russia unrelated to the campaign.
The Steele Dossier and FISA Surveillance
That brings us to a final point. In support of the neon-flashing fact that the Trump campaign was under investigation when the Obama administration ran an informant at it, there is much more than former Director Comey’s testimony.
Probes conducted by both the House Intelligence Committee and the Senate Judiciary Committee have established that the Obama Justice Department and the FBI used the Steele dossier to obtain FISA-court warrants against Carter Page. The dossier, a Clinton-campaign opposition-research project (a fact withheld from the FISA court), was essential to the required probable-cause showing; the FBI’s former deputy director, Andrew McCabe, testified that without the dossier there would have been no warrant.
So . . . what did the dossier say? The lion’s share of it — the part Director Comey omitted from his briefing of Trump — alleged that the Trump campaign was conspiring with the Kremlin to corrupt the election, including by hacking and publicizing Democratic-party emails.
We also know, thanks to more testimony by Director Comey, that dossier information was presented to the FISA court because the Justice Department and the FBI found former British spy Christopher Steele to be reliable (even if they could not corroborate Steele’s unidentified Russian sources). That is, the FBI and Justice Departmentbelieved Steele’s claim that the Trump campaign was willfully complicit in Russia’s treachery.
It is a major investigative step to seek surveillance warrants from the FISA court. Unlike using an informant, for which no court authorization is necessary, applications for FISA surveillance require approvals at the highest levels of the Justice Department and the FBI. After going through that elaborate process, the Obama Justice Department and the FBI presented to the court the dossier’s allegations that the Trump campaign was coordinating with Russia to undermine the 2016 election.
If that was their position under oath before a secret United States court, why would anyone conceivably believe that it was not their position when they ran an informant at members of the campaign they were investigating?
To be sure, no sensible person argues that the FBI should refrain from investigating individuals suspected of acting as clandestine agents of a hostile foreign power. The question is: How should such an investigation proceed in a democratic republic whose norms forbid an incumbent administration, in the absence of strong evidence of egregious misconduct, from directing its counterintelligence and law-enforcement powers against its political opposition?
That norm was flouted by the Justice Department and the FBI, under the direction of the Obama administration’s senior political leadership. Representative Gowdy, Senator Rubio, and General Clapper maintain that the Justice Department and the FBI were just doing what we should expect them to do, and that we should applaud them. But this claim is based on the easily refuted fiction that the Justice Department and FBI were not investigating the Trump campaign. The claim also ignores the stubborn fact that, if all the Obama administration had been trying to do was check out a few bad apples with suspicious Russia ties, this could easily have been done by alerting the Trump campaign and asking for its help.
Instead, Obama officials made the Trump campaign the subject of a counterintelligence investigation.