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. This 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).
So, as we just saw, a Preliminary Investigation can be initiated merely on the basis of "information or an allegation" of a "threat to the national security." Importantly, initiation of a Preliminary Investigation would justify use of precisely those investigative techniques that have recently come to light--use of informants or "spies." Thus, if the FBI did in fact follow this approach, critics of the FBI would be required to argue that the "allegations" of "collusion"--whether they ultimately proved true or not--posed no threat to national security. That's not an impossible argument to make, but it's not easy, given that "threat to national security" is a pretty broad concept. Further, the FBI would be able to argue that, sure, hindsight may be 20/20, but at the time they believed what Halper and Downer were telling them. They were wrong, in hindsight, but they were acting in the interests of national security. This defense is messy, damaging from the point of public perception, is problematic in parts--why, for example, did the FBI not warn Trump of the supposed Russia threat?--but it could ultimately prove workable in a purely defensive sense.
However, supposing that this scenario--existence of a Preliminary Investigation prior to the Full Investigation--could be used to justify the use of informants, it still doesn't give the FBI a Get Out of Jail Free card. Why not? Because there's the very messy business of FISA, and this is a matter that I got down in the weeds on in a recent blog: Crossfire Hurricane: The How and Why. I continue to believe, as I maintained then, that the Preliminary Investigation, with its use of human sources like Halper and Downer, was almost certainly a stopgap measure required by NSA's crackdown on the FBI's abuse of NSA gathered data. While the FBI likely hoped for success in their use of human sources, they were probably actively exploring ways to justify electronic surveillance of the Trump campaign through FISA--to make up for the loss of the NSA back door approach.
So, let's suppose that the FBI was rolling along with their Preliminary Investigation, sometime in the Spring of 2016. True, the Preliminary Investigation justified the investigative techniques they were deploying against the Trump campaign, but the results of those investigations were proving highly unsatisfactory. They were, in fact, coming up empty. No evidence of "collusion." Further, as I have argued, if these investigative efforts failed to turn up information that could be leaked and would prove powerful enough to sink the Trump candidacy, then the Hillary campaign was going to need better intelligence than could be obtained through the likes of Stefan Halper and assorted Aussie diplomats. And that, of course, is where the famous Dossier and FISA came in.
As we all know by now, initiation of a Full Investigation is required before a FISA order can be obtained. The Guidelines do require a higher standard to initiate a Full Investigation as opposed to a Preliminary Investigation. A Full Investigation requires showing of "an articulable factual basis ... that reasonably indicates that" a threat to national security "exists". Use of the dossier to provide predication for a Full Investigation was unquestionably pushing the envelope--given that the dossier was and remains "unverified," it could hardly be said to provide "an articulable factual basis" for anything. Nevertheless, given that only the FBI and DoJ would likely be aware of this, the risk involved in going beyond the Guidelines was probably considered manageable. Initiation of a Full Investigation could be, shall we say, fudged. "Mistakes were made."
The big problem comes in with the application to the FISA court. FISA requires a considerably higher standard for obtaining electronic surveillance on a US Person than simply a "threat to national security," and this, I believe, is where the Clapper "we were only trying to help" "threat to national security" argument falls apart. The fact is, 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 is a tough hill to climb and, as I've argued in the past, likely went well beyond "pushing the envelope" into the realm of sheer invention--as witness Comey's admission that the dossier was "unverified," even though, according to McCabe, it was crucial to obtaining the FISA. 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.
When you view Strassel's question from this standpoint, you can see that, even if by pushing the envelope (as defined by the Guidelines) the use of informants can be justified, 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." 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.
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.
ADDENDUM: John Solomon, in a new article today, London ‘bridges’ falling down: Curious origins of FBI’s Trump-Russia probe, quotes a former "High Bureau Official":
Kevin Brock agrees that Congress has legitimate questions. The retired FBI assistant director for intelligence supervised the rewriting of bureau rules governing sources, under then-director Robert Mueller a decade ago. Those rules forbid the FBI from directing a human source to target an American until a formally predicated investigative file is opened.
Brock sees oddities in how the Russia case began. “These types of investigations aren’t normally run by assistant directors and deputy directors at headquarters,” he told me. “All that happens normally in a field office, but that isn’t the case here and so it becomes a red flag. Congress would have legitimate oversight interests in the conditions and timing of the targeting of a confidential human source against a U.S. person.”While many of Brock's observations are valid, his assertion that "Those rules forbid the FBI from directing a human source to target an American until a formally predicated investigative file is opened" appears to be incorrect.
The Guidelines distinguish two types of investigations: Assessments (a less "formal" type of inquiry, formerly known as "Threat Assessments") and Predicated Investigations (subdivided into Preliminary Investigations and Full Investigations). Regarding the investigative techniques that are allowed in an Assessment, the Guidelines specifically permit nine investigative techniques, including:
e. Use and recruit human sources in conformity with the Attorney General's Guidelines Regarding the Use of FBI Confidential Human Sources.It should be noted that the quoted provision is an expansion of the provision in the original Guidelines governing National Security Investigations, which allowed Assessments only to:
5. Interview previously established assets, informants, and cooperating witnesses (not including new tasking of such persons)."Asset" is a specific reference to informants used in Counterintelligence investigations. The current Guidelines expand the permission, removing the restriction to "previously established assets" and allowing the recruitment of new assets to be used in the Assessment. The only restriction I could find in the Guidelines regarding investigations of United States Persons (USPERs) was the following:
Various features of these Guidelines facilitate the National Security Division's oversight functions. Relevant requirements and provisions include: (i) required notification by the FBI to the National Security Division concerning full investigations that involve foreign intelligence collection or investigation of United States persons in relation to threats of the national security ...