Kim Strassel raised an interesting question, Friday, in her regular weekly column--The Curious Case of Mr. Downer: His story about the Papadopoulos meeting calls the FBI’s into question. Alexander Downer was the Australian ambassador to the UK in 2016. 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. Strassel concludes by raising some very pointed questions:
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?"
The fact is, there is an answer to Strassel's question, and I think we'll find--in fact, recent talking points floated by James Clapper and others point in this direction--that the justification will rely on provisions of the Attorney General Guidelines. To understand and evaluate this defense, however, and to avoid the pitfalls of speculating with a firm grasp of the controlling guidelines and statutes, we'll need to explore the nature of FBI investigations, because the type of investigation controls, to some extent, the type of investigative techniques that are authorized. All this is set out in detail in the Attorney General Guidelines For Domestic FBI Operations (AGG) and the FBI Domestic Investigations And Operations Guide (DIOG).
Basically, there are three types of FBI investigations that involve opening an investigative case file: 1) Assessments, 2) Preliminary Investigations, and 3) Full Investigations. The latter two are grouped as "Predicated Investigations" because, unlike in the case of an Assessent, an agent will need to present some degree of factual predication before he can open one of these types of investigation. The type of investigation that is opened will depend upon the factual situation, and if additional facts are developed in the course of the investigation the type of investigation may be upgraded.
As far as investigative techniques go, the Assessment serves as a baseline--any technique that can be used in an Assessment can also be used in a Preliminary or Full Investigation. For our purposes, the important point is that the use of existing informants (Confidential Human Sources/CHS) or the recruitment of new informants is authorized for ALL three types of investigations. There has been some confusion recently regarding the use of informants before a "formal" case has been opened. The confusion arises because Assessments are sometimes confused with the informal initial checking of investigative leads conducted to determine whether or not to open an investigative case file. That type of informal checking can only be conducted using public information, not through the use of informants.
At this point we can safely drop Assessments from our considerations and concentrate on the two "Predicated Investigations": the Preliminary Investigation and the Full Investigation. The reason we can disregard Assessments is that once an agent has gathered enough facts to direct an informant to target specific persons he will certainly have enough "predication" to warrant opening at least a Preliminary Investigation. And that targeting of specific individuals is precisely what we're dealing with in Spygate.
What, then, is the distinction between the Preliminary and the Full Investigation? Briefly, the Preliminary Investigation permits of a significantly lower level of predication than a Full Investigation. Whereas a Preliminary Investigation can be opened simply on the basis of "information or allegations", a Full Investigation requires "an articulable factual basis." If we plug those phrases into the formulations that we find in the AGG, the significance will become very apparent. Note, first, in the case of the Preliminary Investigation that the predication can be somewhat speculative, as evidenced by use of the word "may":
Predication Required for Preliminary Investigations:
1. A Preliminary Investigation may be initiated on the basis of information or an allegation indicating that an activity constituting a threat to the national security has or may have occurred, is or may be occurring, or will or may occur. Or,
2. A Preliminary Investigation may be initiated on the basis of information or an allegation indicating that an individual, group, or organization may be a target of attack, victimization, infiltration, or recruitment in connection with a threat to the national security.
In other words, a Preliminary Investigation can be opened even though the factual basis of the "threat to national security" hasn't been verified--as long as the "information or allegation" "may" be credible. Naturally, those issues must be presented in detail in an opening Electronic Communication (EC).
Here the question that Strassel presented takes on real interest. Recall that informants can be used in the course of a Preliminary Investigation. Now, suppose that the FBI learns that a presidential campaign is seeking or being offered "dirt" on its opponent from a hostile foreign power--Russia, for example. Is the FBI justified in regarding this as constituting a possible threat to the national security, opening a Preliminary Investigation, and deploying informants to learn more? Quite possibly. The real problem, as it seems to me, would be if the use of informants should turn into an effort not to discover the truth but to produce inculpatory evidence. And here, I think, we see where James Clapper's we-were-only-trying-to-protect talking point comes into play. An effort to protect an individual or group would be a valid purpose for opening a Preliminary Investigation, but is that in fact how the FBI ran their investigation of the Trump campaign? To come to an informed decision, we would need to look at the entire circumstances--did the FBI in fact take steps to protect or warn the Trump campaign, what were those steps, etc.
Now, when we turn to the Full Investigation, on the other hand, the speculative element disappears.
Predication Required for Full Investigations:
A Full Investigation may be initiated if there is an articulable factual basis for the investigation that reasonably indicates that one of the two conditions specified above (with regard to Preliminary Investigations) exists.
Does this suggest why the FBI and DoJ are so intent on preventing Congress from reading the EC that opened the Full Investigation on July 31, 2016? It should, because that EC would have had to state the "articulable factual basis" for the investigation. In other words, the EC would have had to assert that there were specific, verified facts indicating a threat to national security, and it would have had to explicitly state what those facts were. When someone determinedly attempts to withhold a document of that sort from Congress I think we're entitled to draw some adverse conclusions.
Now let's try to place all this into perspective.
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 its Papadopoulos narrative are credible, then you may be inclined to agree with Trey Gowdy's notion that the FBI was acting properly. Or, to be more specific, you may be inclined to agree that a Preliminary Investigation was warranted, since the AGG 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. But, that being the case, the question arises: If the matter were that simple, why wouldn't the FBI simply open a Preliminary Investigation and target their informants against the Trump campaign? Why bother with a Full Investigation at all, as we know they later did? I suggest that there's a relatively straightforward answer to these questions.
Virtually all commentary that I've read focuses on the initiation by the FBI of a Full Investigation on July 31, 2016. Commentators who have constructed timelines of events--an excellent idea, in and of itself--then often 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 AGG, since the FBI would have been targeting informants without an open investigation.
While it's possible that the FBI willfully violated the AGG in this manner, it seems unlikely--bureaucracies don't often operate in such a reckless fashion. The seek to keep their backsides covered at all times.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 opened that was being actively worked--that's certainly given by the FBI's activities prior to the Full Investigation. This approach--use of a Preliminary Investigation as a prior stage before going for a Full Investigation--is actually quite common in counterintelligence work and 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). But, you ask, if that was the case, wouldn't the FBI have been eager to inform Congress that it had been following all the rules? The use of informants against a presidential campaign might be politically embarrassing, but the idea that it was done illegally would be far worse than if it had actually been done legally, under the authority of a Preliminary Investigation, right? Maybe not.
It's possible that the FBI may have had an arguably justifiable Preliminary Investigation open in the Spring of 2016, but are now desperate to conceal what they were doing with that Preliminary Investigation. The reason is suggested by D. Manny. In a Strzok/Page text dated 4/30/16 we read:
"So now we've switched from the Patriot Act to a wire carrying current (redacted)".
What does this mean? D. Manny explains:
2. The Patriot Act is the broad legislation that the government used to conduct much of its "eavesdropping" via 702 queries on the American public--and Donald Trump.
3. We know that because of the valiant efforts of Admiral Rogers, the 702 queries were abruptly halted on April 18, 2016 when widespread and suspicious abuse was found--abuse we have widely attributed to contractors and others in the #Spygate scandal. ...
5. What I basically just read, is an admission by Peter Strzok, that they were forced to stop using the "Patriot Act" (702 abuse) and switch to using "A WIRE CARRYING current" What? Spy? Informant? Was someone literally wearing a WIRE for the FBI? Inside the campaign? IN APRIL?!
This is exactly what I discussed in Crossfire Hurricane: The How and Why. What D. Manny is referring to as "702 abuse" is the FBI's abuse of NSA data, by allowing access to it by private contractors--almost certainly including Glenn Simpson's Fusion GPS. As I argued, when NSA's Mike Rogers abruptly shut off FBI access to 702 derived data, the FBI was forced to look for an alternative source of Electronic Surveillance data. That source could only come through FISA. The hangup was this: To get a FISA you need more than just a Preliminary Investigation--you need a Full Investigation, and that whole process can take months. In fact, the FBI didn't get it's Full Investigation until the end of July, basically 3 months after the NSA pulled the plug on them. What could the FBI do in the meantime as a stopgap? D. Manny is arguing that the FBI made use of another investigative technique that's authorized under a PI: consensual monitoring, i.e., consensual recording of conversations, "wearing a wire." So the meaning of the cryptic Strzok/Page text becomes clear as a complaint or lament: We had the full run of NSA data and now, thanks to Mike Rogers, we're reduced to consensual monitoring--a far more cumbersome and less productive method, in the circumstances.
Again, consensual monitoring could be perfectly legal under a Preliminary Investigation, although the American public might react very negatively if this fact situation became known. But the reality may be even worse than the FBI targeting and recording conversations with hapless would be Trump advisers such as George Papadopoulos and Carter Page. Consider. We now know that the FBI was very busy examining the Trump campaign during the Spring of 2016, but the results weren't proving to be terribly promising--not if the aim was to derail the Trump campaign. Something far more dramatic was needed.
This is the context, in my opinion, in which we need to view the formerly famous but now oft forgotten June 9, 2016, meeting at Trump Towers between Don Trump, Jr., and Paul Manafort from the Trump campaign and a group headed by the dodgy Russian lawyer, Natalia Veselnitskaya. Recall how that meeting went down. Veselnitskaya had claimed to have "dirt" on Hillary but, when she turned up at Trump Towers, instead of dishing the "dirt" she kept yammering about the Magnitsky Act sanctions. I suggest that what was going on was an attempt by Veselnitskaya to elicit from the Trump campaign an offer of a quid pro quo--an offer to act on or reconsider sanctions against Russia in exchange for the previously promised "dirt" on Hillary. I really can't see any other way to understand that meeting and Veselnitskaya's behavior, and any hint of a quid pro quo of any sort would have served the purpose. Fortunately, Don Jr. didn't bite, and instead terminated the meeting. If he had discussed or hinted at a possible quid pro quo of any sort that could have spelled the end of the Trump campaign--especially if the meeting had been the subject of consensual monitoring, was recorded using one or several techniques.
Did I just say "consensual monitoring?" As in: the FBI may well have been behind this attempted setup, this attempt to utterly derail the Trump campaign, using techniques that are authorized under a Preliminary Investigation? Yes, I did. Obviously I don't know this for a fact, but the circumstantial evidence certainly points in that direction. Again, consider. This meeting took place in the context of months of FBI activity with regard to the Trump campaign. For anyone who thinks the FBI wasn't aware of this meeting before it happened, well, I have a bridge in Brooklyn that you might be interested in. And then, Veselnitskaya was only able to enter the US on a special Visa, approved by AG Lynch. Both shortly before and shortly after the Trump Towers meeting Veselnitskaya met with Glenn Simpson of Fusion GPS, whose FBI connections are now well known. And, finally, if D. Manny is correct, Peter Strzok had already discussed the use of consensual monitoring, going forward from 4/30/16. How does this fit in with Clapper's claim that "we were only trying to help, to protect" the Trump campaign? Not too well.
If this is, indeed, how things went down, it's easy to imagine the disappointment at the FBI and DoJ. The mining of NSA data for political intelligence had been shut down by NSA's Mike Rogers. The targeting of Trump campaign associates wasn't producing the type of results that would have a guaranteed impact on the Trump campaign. And now, the best opportunity so far of delivering a killshot to the Trump campaign had flopped. What was really needed was a FISA that could be used against the Trump campaign, but to have even a chance at FISA they first needed a Full Investigation on someone close to the campaign. There were two possibilities, it seems. The FBI could resurrect 10 year old charges against Paul Manafort. Sharyl Attkisson tells us that at the time of the Trump Towers meeting the FBI had no FISA on Manafort but that it soon afterwards restarted a FISA on him. Obviously, a FISA on Trump's campaign manager would be a gold mine of political intelligence. And then, conveniently, there was the Carter Page angle: Christopher Steele had begun submitting his memos that became the famous "dossier," and by July, thanks to Page's trip to Moscow, the FBI was able to open a Full Investigation on Page--their former informant.
It's possible that by this time--with a restarted FISA on Manafort either in place or in contemplation--the FBI felt they were making progress, getting back into the position that they had lost when NSA pulled the plug on them. But all was not well, as the FBI may have already been aware. In fact, by August 16 we find Strzok/Page texting about the need for an "insurance policy." Could that need have been triggered by Manafort's rapidly declining influence in the Trump campaign? Indeed, Wikipedia tells us that the very next day Manafort was on the outs and resigned two days later:
In August 2016, Manafort's connections to former Ukrainian President Viktor Yanukovych and his pro-Russian Party of Regions drew national attention in the US, where it was reported that Manafort may have illegally received $12.7 million in off-the-books funds from the Party of Regions.
On August 17, 2016, Donald Trump received his first security briefing. The same day, August 17, Trump shook up his campaign organization in a way that appeared to minimize Manafort's role. It was reported that members of Trump's family, particularly Jared Kushner who had originally been a strong backer of Manafort, had become uneasy about his Russian connections and suspected that he had not been forthright about them. Manafort stated in an internal staff memorandum that he would "remain the campaign chairman and chief strategist, providing the big-picture, long-range campaign vision". However, two days later, Trump announced his acceptance of Manafort's resignation from the campaign ...
And that's when the FBI began scrambling to get a FISA on Carter Page.
As we know, initiation of a Full Investigation is required before a FISA order can be obtained, and the FBI had the required Full Investigation in place, against Carter Page. The initiation of that Full Investigation had undoubtedly required some pushing of the envelope, since the the predication for the Full Investigation, the "articulable factual basis," had almost certainly been the Steele "dossier", now known to be unverified. Even with the Full Investigation in place, however, a FISA was far from a certainty. As we've seen, Preliminary or Full Investigations can be opened on a claimed purpose of protecting Americans (for example, Donald Trump) from the intelligence activity of a hostile foreign power, such as Russia. However, if you go in front of the FISA court (FISC) and ask for a FISA order on an American citizen to "protect" him from intelligence activity, you'll be tossed out on your ear.
The problem is that FISA requires a showing that the person targeted (Carter Page) is "knowingly engage[d] in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States." That's a tough hill to climb and, as I've argued in the past, the FBI's FISA application likely went well beyond "pushing the envelope" into the realm of sheer invention--as witness James Comey's admission that the dossier remains "unverified," even though, according to Andrew McCabe, it was crucial to ultimately obtaining the FISA (late October, 2016). In point of fact, as part of the FISA application process, the FBI and DoJ would be required to state to the FISA court that what they were presenting was verified information with a high degree of reliability. And they would know that to be false. Moreover, the required showing under FISA that Carter Page--whom the FBI had targeted with informants only a few months earlier--was an "agent of a foreign power" engaged in "clandestine intelligence activities" for or on behalf of Russia militates strongly against the Clapper claim that "we were only trying to help and protect."
When you view Strassel's question from the perspective of this interlocking web of guidelines and statutes, you can see that, even if by pushing the envelope the use of informants could be justified under a Preliminary Investigation, FISA is far too specific in its requirements to justify "secret surveillance warrants" simply on the basis of a supposed (or "arguable") "threat to national security." That simply won't fly. And this is why access to the FISA application that the leadership of the FBI and DoJ signed off on remains of paramount importance for investigators, along with the EC that supposedly justified the Full Investigation.
One final point. These considerations may shed some light on the thinking that went on in the White House as these events unfolded, as suggested by Susan Rice's "email to self." If President Obama did, in fact, state that everything should be done "by the book," that would help explain why the FBI jumped through all these hoops in the effort to cover their actions. To all appearances, the FBI and DoJ were operating "by the book." It's only when you examine the details--and especially the FISA details--that you begin to see what a threat their activities constituted to our republic.