I hope the president follows through, at least to the extent he can do so without putting intelligence methods and sources at risk. Accountability is essential here.
The FBI and the Obama Justice Department launched an investigation of the Democrats’ political adversaries, and they used Clinton-campaign-generated, foreign-provided innuendo to do it. They strained to make a case on Donald Trump even as they were burying a daunting criminal case on Mrs. Clinton. As I have previously explained, moreover, the president was misled about his status: not only was he a suspect in the investigation, he was the main suspect.
The main suspect in an investigation with no crime.
Before we unwind that, let’s dispense with the tired claim that the Obama administration did not really spy on Trump and his campaign. Every one of the four FISA warrant applications, after describing Russia’s cyberespionage attack on the 2016 election, makes the following assertion (after two redacted lines):
the FBI believes that the Russian Government’s efforts to influence the 2016 election were being coordinated with Page and perhaps other individuals associated with Candidate #1’s campaign.
“Candidate #1” is Trump. See, the upper hierarchies of the FBI and the Justice Department believed the Steele dossier — or at least they said they did. The operating assumption of the Obama administration in the months before the 2016 election was that the Trump campaign was complicit in the Kremlin’s hacking conspiracy. Otherwise, the FBI would not have made this representation to the FISA court four times, including twice after President Trump was already in office.
Did they say this because they believed it was true? Because they wanted to believe it was true? Because they had misplaced confidence in Christopher Steele, the former British spy who shared their anti-Trump contempt? Probably a bit of all those things. But the point is: You must always bear in mind that the incumbent leadership of the intelligence community had convinced itself that the Trump campaign was in cahoots with the Kremlin. Based on that belief, the FBI and Obama’s DOJ took bold risks because they’d further convinced themselves that there was no risk at all: Everything was in the black box of classified intelligence and, besides, Hillary was a shoo-in to win. No one would ever be any the wiser.
FISA Collection Will Be “Evaluated by Prosecutive Authorities”
Let’s shift our attention to the redacted Carter Page FISA warrant applications. While we anticipate that the president is poised to force disclosure of currently blacked-out information, not enough attention has been lavished on the applications in their present state — figuring out what’s been blacked out and, more significantly, grasping the ramifications of what has been disclosed.
I have dealt with the redactions in a separate column. The vast majority of them — the bulk of the 412 largely duplicative pages of FISA warrant documents — are really not that hard to figure out. More importantly, most of the redactions have nothing to do with what really matters: the evidence on which the FBI relied to claim that there was probable cause that Carter Page was an agent of Russia.
Here, let’s stick with the essential point: The use of counterintelligence authorities to conduct a criminal investigation of Donald Trump in the absence of a predicate crime.
We’ve had a lot to say about Deputy Attorney General Rod Rosenstein’s failure to comply with federal regulations that require showing a factual basis for a criminal investigation — i.e., reason to believe that a crime was committed — before appointing a special counsel, Robert Mueller. But Rosenstein was just riding the tide. The FISA warrants show that this practice of launching a criminal investigation in the absence of a crime long predated Rosenstein and Mueller. It was the modus operandi of the Trump-Russia investigation from Day One, when Obama’s Justice Department and the FBI first targeted the Trump campaign.
This raises a question that should gnaw at those of us (like moi) who have championed robust national-security powers in an era dominated by international terrorism: Is this pretextual use of FISA something that the Justice Department and FBI designed specifically for the Trump-Russia investigation, or is it standard operating procedure in all counterintelligence cases? (We can’t answer that question at the moment. FISA warrant documents are highly classified, which is why it’s been so hard to get even partial disclosure regarding the Trump-Russia investigation; we do not know if FISA warrants in other cases mirror the ones we’ve been permitted to see.)
Let’s cut to the chase. Every one of the four Page warrant applications makes the following assertion (the italics are mine):
The Purpose of the Authorities Requested
The FBI’s foreign intelligence goals for this investigation are set forth in the certification of the Executive Branch official contained herein. However, the authorities requested in this application may produce information and material which might, when evaluated by prosecutive authorities, constitute evidence of a violation of United States law, and this investigation may result in an eventual criminal prosecution of the target. Nevertheless, as discussed in the certification, at least a significant purpose of this request for [REDACTED] is to collect foreign intelligence information as part of the FBI’s investigation of this target.
This is so matter-of-factly brazen, buried on page 41 of the 54-page application, that we can easily miss its significance.
Exception for Inadvertent Discovery of Criminal Evidence
FISA authorities are not criminal-law authorities. It is not just that FISA is not designed to ferret out evidence of crime; it is not permitted to be used for that purpose. FISA’s objective is the collection of foreign intelligence, the gathering of information about the actions and intentions of foreign powers that may threaten American interests.
The Page warrant application implies that it is a standard part of the process that “prosecutive authorities” — i.e., prosecutors, criminal investigators, grand juries — peruse FISA evidence to determine whether crimes have been committed. Not true. Prosecutors normally have nothing to do with FISA. Counterintelligence is not “prosecutive”; it aims to gather information about other countries and their operatives, not make criminal cases.
There is an exception. It is not unique to FISA; it is a common-sense exception that applies across the board in federal law: If investigators are conducting a legitimate investigation, and they unexpectedly stumble upon evidence of a crime, they are not required to ignore it even if it wasn’t what they were looking for in the first place.
Some examples. If a federal agency is soliciting contract bids and a bid comes in that is patently fraudulent, it can be referred to criminal investigators. If the FBI is doing a background check for a woman who has applied for a federal job, and agents discover she has committed bank fraud, the Bureau will refer that for prosecution. If an FBI agent is executing a search warrant permitting him to seize guns with obliterated serial numbers, and he happens to find a bag of cocaine on the premises, he may seize the drugs and the culprit will be prosecuted on narcotics charges. And if, while conducting a lawful FISA surveillance, the FBI discovers that the suspected agents of a foreign power are plotting to blow up a building, that evidence may be handed over to criminal investigators for a terrorism prosecution.
There is nothing remarkable about this exception. Everybody knows about it. It would never be spelled out in a normal search warrant. Prosecutors and agents do not write in their warrant applications, “If the premises contain incriminating materials other than that which the court has authorized seizure of, the FBI may seize those materials”; if they wrote this, it would be suggestive of an unconstitutional “general warrant” — it would intimate that the government’s real agenda was to find evidence beyond what they had probable cause to search for. Similarly, it is not necessary in a FISA warrant application to spell out the exception for good-faith, unintended discovery of criminal evidence. Doing so strongly suggests the FBI and DOJ realize that they are conducting a de facto criminal investigation. It suggests that they are pretextually using FISA, because they either lack grounds to justify a criminal wiretap application (which requires probable cause of a crime), or desire to conceal their criminal probe under the cover of classified intelligence. It suggests that the overarching objective is to make a criminal case, not to collect foreign intelligence.
Using Counterintelligence to “Assess Whether Crimes Were Committed”
It is worth noting that we don’t just find this wayward approach in the FISA applications. It sings aloud in the breathtaking testimony of the FBI’s then-director, James Comey, before the House Intelligence Committee on March 20, 2017 (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. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.
Put aside that it is against Justice Department and FBI protocols to confirm the existence of an investigation and to identify as suspects uncharged persons or entities (“individuals associated with the Trump campaign”). It is simply not the case that every counterintelligence investigation includes “an assessment of whether any crimes were committed.” Most counterintelligence investigations have no interest in crimes. Rather, in any random investigation, if evidence of a crime the investigators were not looking for happens to turn up, an assessment is then made of whether it should be referred for prosecution. This assessment is not supposed to be built into the process because it is extraordinary — the purpose of FISA is not supposed to be to build a criminal case. That’s why very few criminal cases include FISA evidence.
Director Comey’s testimony echoes the assertion in the FISA warrants about having “prosecutive authorities” weigh in. And Comey’s testimony was expressly incorporated in Rosenstein’s appointment of Mueller. The special counsel was given the counterintelligence investigation of Russia. That investigation itself was real, but its assignment to Mueller was camouflage, because a counterintelligence investigation does not need a prosecutor. For Mueller, the Russia counterintelligence probe was cover to conduct a criminal investigation of Trump in the absence of grounds to believe a crime had occurred.
The Wall: Preventing Abusive Pretextual Use of FISA
Maybe this seems like a hypertechnical point. It is not — certainly not if you lived through the 1990s.
Back then, in the eight years between the 1993 World Trade Center bombing and 9/11, al-Qaeda repeatedly attacked the United States. The government struggled to decide whether international terrorism was strictly a criminal matter, to be investigated with such techniques as criminal wiretaps, or a national-security matter, to be investigated under FISA and other intelligence-gathering procedures.
Obviously, it was both. But that caused the Clinton Justice Department sleepless nights over what seemed — to me, among other terrorism prosecutors and investigators — to be overwrought fears of hypothetical abuses remote from real-world experience.
I guess I owe Jamie Gorelick an apology.
The then–deputy attorney general and other Clinton DOJ officials were worried about FISA. What if you had a rogue agent who was predisposed to believe a suspect was guilty, but couldn’t prove it? The rogue agent did not have enough evidence to seek a regular wiretap or search warrant. Mightn’t the rogue be tempted to use FISA? He’d just need to claim that there was some vague national-security aspect to the case; to pretend that his investigation was connected to a broader counterintelligence investigation of a foreign power. The rogue agent could then seek a FISA warrant to surveil the suspect. He would call it “counterintelligence,” but in reality he’d be conducting a criminal investigation — eavesdropping and searching suspects — even though he did not have probable cause to believe a crime had been committed.
Based on this fear that FISA could be used pretextually to conduct criminal investigations, the Clinton Justice Department imposed “The Wall.” To prevent investigators from exploiting FISA to steer criminal investigations, a barrier was imposed between the FBI’s counterintelligence agents, on one side, and criminal investigators and prosecutors, on the other. It became practically impossible for the two sides to cooperate and share information.
One result was the desired clamping down on potential FISA abuse. But the cure proved worse than the disease. With counterintelligence and criminal investigators unable to build a mosaic of intelligence, the left hand no longer knew what the right hand was doing. This enabled terrorists to escape detection. Inevitably, catastrophes would occur, such as 9/11.
After 9/11, The Wall came down. Its razing was endorsed by such experienced hands as your humble correspondent. We argued that it was ridiculous to believe the FBI would pretextually use FISA to conduct a criminal investigation. Many times I posited that, even if we assume a rogue agent, it would be far easier for the rogue to fabricate the evidence needed to get a criminal wiretap than to fabricate a national-security angle so he could use FISA. I insisted that if the rogue tried to go the FISA route, he’d never get away with it. FISA requires too many levels of scrutiny in the upper ranks of the FBI and the Justice Department — responsible superiors who would stop the rogue in his tracks.
I was wrong.
What I didn’t factor in was the possibility that, for political reasons, the upper ranks of the FBI and Justice Department would do an investigation by themselves. That should never happen. The bosses are supposed to be the cooler heads, with detachment from on-the-ground investigation. They are there to enforce guidelines and prevent abuse, to police investigations, not conduct them.
But in the Trump investigation, headquarters became the investigator. And just as an investigator is tempted to keep his supervisors in the dark when he is doing something he shouldn’t do, the Obama Justice Department and FBI withheld information about the Trump investigation from Congress — even though the “Gang of Eight” was supposed to receive quarterly briefings on sensitive matters. They withheld essential information from the FISA court about the source of their information (the Clinton campaign), and about the apparent dishonesty and deep bias of their main witness (Christopher Steele), even as they presented unverified allegations to the FISA court, flouting FBI guidelines. Headquarters exists to prevent investigators, who sometimes get too invested in their cases, from cutting such corners. But here, headquarters was its own supervisor. Such arrangements tend not to end well.
Do They Do This All the Time, or Just for the Trump Investigation?
The Wall was removed to promote information-sharing and thus prevent terrorist attacks. Yet its removal did not change the fundamental rules. If agents have a factual basis to believe a crime has been or is being committed, the FBI opens a criminal investigation and uses criminal authorities. If, instead, the main purpose of the investigation is to gather foreign intelligence, the FBI opens a counterintelligence investigation and may use FISA. It remains improper to make pretextual use of FISA to conduct a criminal investigation when there is no factual basis to believe a crime has been committed. Yes, if agents conducting a good-faith FISA investigation incidentally discover evidence of a crime, they are not required to ignore it; but this sensible rule is not a license to conduct a FISA investigation with the objective of unearthing criminal evidence.
Yet, that is what happened in the Trump probe. The FBI has been investigating for well over two years, and for nine months of that time it expressly told the FISA court it believed the Trump campaign was engaged in a corrupt conspiracy with Russia. No one, though, has ever been charged with such a heinous offense. Meanwhile, Deputy Attorney General Rosenstein persists in his refusal to identify any crime for which there was such a strong basis to believe Trump could be guilty that a special counsel had to be appointed.
If there were such a crime, we would have been told about it by now. The “factual” basis for suspecting Trump of an espionage conspiracy with Russia was the uncorroborated, unverifiable Steele dossier. The Obama Justice Department and the FBI used the dossier to get FISA warrants, and in so doing told the court that “prosecutive authorities” would “evaluate” the “foreign intelligence” in a hunt for crimes.
The Justice Department and the FBI know they are not permitted to use FISA as a pretext. If I were a member of Congress, I’d be asking them whether this promise of “prosecutive” review in the Page warrant application (a) was unique to the Trump investigation or (b) is invoked whenever the FBI seeks a FISA warrant.
Either way, it’s a problem. Either way, it harms the country. If the public becomes convinced that national-security powers, such as those in FISA, are being employed to monitor Americans when there is insufficient evidence to justify a criminal investigation, there will be demands to strip these powers. And those of us who have insisted through the years that, with responsible supervision by the top tiers of the Justice Department and the Bureau, the government can be trusted not to abuse these powers, will have nothing to say.