Kim Strassel raised an interesting question in her column today--The Curious Case of Mr. Downer: His story about the Papadopoulos meeting calls the FBI’s into question
. As the title indicates, Strassel finds the FBI's claim that their probe of the Trump campaign was based on Downer's contact with George Papadopoulos to be ... less than credible. And she closes with these observations:
For months we’ve been told the FBI acted because it was alarmed that Mr. Papadopoulos knew about those hacked Democratic emails in May, before they became public in June. But according to the tipster himself, Mr. Papadopoulos said nothing about emails. The FBI instead received a report that a far-removed campaign adviser, over drinks, said the Russians had something that might be “damaging” to Hillary. Did this vague statement justify a counterintelligence probe into a presidential campaign, featuring a spy and secret surveillance warrants?
Unlikely. Which leads us back to what did inspire the FBI to act, and when? The Papadopoulos pretext is getting thinner.
Indeed--since when does "something that might be 'damaging' to Hillary ... justify a counterintelligence probe into a presidential campaign, featuring a spy and secret surveillance warrants?"
As I wrote in an email this morning, I think we'll find--in fact, recent talking points floated by James Clapper and others point in this direction--that the justification for launching a counterintelligence investigation into a presidential campaign on the basis of "something damaging to Hillary" will rely on provisions of the Attorney General Guidelines
. Bear with me for a moment, because this will lead back to Strassel's question.
Those AG Guidelines, which govern FBI investigations, allow the FBI to open a "predicated investigation" in the following circumstance:
"A predicated investigation relating to a federal crime or threat to the national security may be conducted as a preliminary investigation or a full investigation."
The Guidelines then expand a bit on the distinction between Preliminary and Full Investigations, but for our purposes the important distinction is simply that FISA coverage is available for Full Investigations, but not for Preliminary Investigations.
If you accept the argument that a presidential campaign that seeks "dirt" on its opponent from a hostile foreign power (Russia) is engaged in conduct that arguably constitutes activity that is a "threat to the national security," and if you further accept that the FBI's claims regarding the credibility of its Papadopoulos narrative, then you'll likely agree with Trey Gowdy's notion that the FBI was acting quite properly. Or, to be very specific, you'll likely agree that a Preliminary Investigation was warranted, since the Guidelines allow for a Preliminary Investigation to be "initiated on the basis of information or an allegation" of a "threat to the national security." "Information or an allegation" is a fairly low bar.
Virtually all commentary that I've read focuses on the initiation of an FBI Full Investigation on July 31, 2016. Commentators who have constructed timelines of events--an excellent idea, in and of itself--then argue that the use of informants or "spies" against the Trump campaign prior to July 31, 2016--for which there is considerable evidence--violated the AG Guidelines.
While it's possible that the FBI willfully violated the Guidelines it seems unlikely--bureaucracies don't often operate in such a reckless fashion. Moreover, this view ignores an important possibility, namely, that before the Full Investigation
was initiated (July 31, 2016) there may have been a Preliminary Investigation
approach--use of a Preliminary Investigation as a prior stage before going for a Full Investigation--fits better with the
usual careful bureaucratic approach. It also, intriguingly, dovetails
with President Obama's reported admonition to "do it by the
book" (see below).