What Kind Of Investigation Is Crossfire Hurricane?
Back on March 20, 2017, then FBI Director Comey testified before HPSCI regarding Russian "active measures" during the 2016 election. Chairman Nunes characterized the committee's work as concerned with Russian "active measures" during the 2016 presidential election, but the Democrats stated that it was all about "collusion" between the Trump campaign and "the Russians." In his testimony Comey confirmed for the committee that the FBI's investigation, which we now know as Crossfire Hurricane and which began in late July, 2016, was concerned with "any coordination between people associated with the Trump campaign and the Russians."
This is important, because in Deputy Attorney General (DAG) Rod Rosenstein's letter of May 17, 2017, in which he appointed Robert Mueller as Special Counsel (SC), Rosenstein's authorization closely tracks Comey's testimony:
The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump; ...
There are several important bits of information that we need to take special note of in this.
- First, Mueller is not starting up a new investigation--he's taking over an already existing investigation, the same one that was confirmed by Comey two months earlier.
- Second, and very importantly, Mueller's investigation is not authorized as a general investigation into Russian "active measures" (i.e., interference, meddling) in the 2016 campaign but instead is rather narrowly focused on "coordination between people associated with the Trump campaign and the Russians."
In other words, Rosenstein did not authorize Mueller to investigate coordination between people associated with the Clinton campaign and the Russians--only the Trump campaign.
In his testimony on December 7, 2018, which included testy exchanges with Republican Congressmen, including Trey Gowdy, Comey hewed closely to his previous testimony. Specifically,
- he categorically denied that the investigation was an investigation of "the Trump campaign or Donald Trump himself;"
- he confirmed, however, that the investigation was of "four Americans" who "did not include the candidate;"
All this is made explicit in a key document: The HPSCI Report on Russian Active Measures, dated March 22, 2018. There we read:
The Committee's investigation also reviewed the opening, in summer 2016, of a FBI enterprise counterintelligence investigation into [REDACTED] Trump campaign associates: [REDACTED] Carter Page, [REDACTED] Because of "the sensitivity of the matter," the FBI did not notify congressional leadership about this investigation during the FBl's regular counterintelligence briefings. Three of [REDACTED] original subjects of the FBI investigation have been charged with crimes and the Committee's review of these cases covers the period prior to the appointment of Special Counsel in May 2017.
What Exactly Is An "Enterprise CI Investigation"?
Fortunately, there's no need for guesswork here. The relevant FBI and DoJ documents that explain what an "enterprise" investigation are available to the public: FBI Domestic Investigations And Operations Guide (DIOG) (Section 8) and The Attorney General's Guidelines for Domestic FBI Operations (pp. 23-24).
An "enterprise" is simply "an organization or group." Naturally, an enterprise can be a highly structured, formal organization--such as a presidential campaign. On the other hand, an enterprise can also be an informal grouping of individuals--possibly without any formal organizational affiliation or possibly affiliated with some formal organization. So, for example: A group of four Americans associated with the presidential campaign of Donald J. Trump, even though not constituting a legal entity and acting for purposes other than those of the Trump campaign, might in certain circumstances be regarded as forming an "enterprise" of their own. What would those circumstances be? DIOG 8.2 Purpose, Scope and Definitions, explains that:
Enterprise defined: An enterprise is a group of persons associated together for a common purpose of engaging in a course of conduct. The term “enterprise” includes any partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact, although not a legal entity.
Associated in fact defined : The term "associated in fact" means the persons have an ongoing organization, formal or informal, and that the persons function together as a continuing unit.The purpose of these distinctions is simply this: The First Amendment protects Freedom of Association, our freedom to group together in associations or ... enterprises. The idea is to safeguard our constitutional rights against the likes of, well, the FBI and DoJ--the government. And so the FBI, in opening enterprise investigations, must be careful not to violate those constitutional protections.
Let's apply these principles to our fact situation.
Here we have four Americans--call them Michael Flynn, Paul Manafort, Carter Page, and George Papadopoulos--all associated in one way or another with the Trump presidential campaign. If they should "associate together for a common purpose," for example, to conspire with the Russian government to engage in criminal activity to secure the election of Donald Trump as president of the United States, why, they will constitute an enterprise. They would be "associated in fact", "functioning together as a continuing unit", "engaged in a common purpose." What we would need to do, as investigators, to start an investigation on their enterprise would be, in the words of the AGG, to establish:
"an articulable factual basis ... that reasonably indicates that the group ... may be ... be engaged in planning or preparation" of their scheme.
Easy? As it happens, I've done this in both the national security and criminal fields and, no, it isn't necessarily easy. The reason is simply that, by their very nature as associations, enterprises whether legal or criminal in purpose behave in similar ways. Without getting into the details, I will flatly assert that, absent source information, the FBI would not have been able to come up with an "articulable factual basis" for launching an enterprise investigation in this situation.
So, imagine the good fortune of the FBI. It turned out that they had a trusted and, supposedly, reliable source of information on Russia--Christopher Steele. He happened to be working for the Clinton campaign, doing opposition research as a contractor for Glenn Simpson's Fusion GPS, but the FBI was willing to use his reports (later compiled into his famous "dossier") and to repeatedly vouch for his reliability. In those reports we read such things as:
- Former top Russian intelligence officer claims FSB has compromised Trump ...
- A well developed conspiracy of cooperation between [Trump] and the Russian leadership ...
- Further evidence of extensive conspiracy between Trump's campaign team and Kremlin ...
- Agreed exchange of information established in both directions ...
- ... managed on the Trump side by the Republican candidate's campaign manager, Paul Manafort, who was using foreign policy advisor, Carter Page, and others as intermediaries ...
- And etc., etc., etc.
Spice this up a bit with informant tittle tattle gleaned from undercover approaches to Trump campaign members, and especially the verifiable fact that Page actually did travel to Russia, and that apparently was sufficient to pass muster as "an articulable factual basis" for an enterprise CI investigation. My view is that no impartial and independent reviewer would buy into that.
What's The Purpose Of An Enterprise Investigation?
But, what's the point of having an enterprise investigation? Wouldn't it be possible to simply investigate each individual who was involved in the conspiracy? Wouldn't that amount to the same thing? Not necessarily. Recall--the purpose is to safeguard Freedom of Association. If the FBI were to start going after random members of the Trump campaign people might get the wrong idea. They might think the FBI was targeting the Trump campaign itself, or Trump himself, rather than some rogue operatives. DIOG has that covered:
The purpose of an Enterprise Investigation is to examine the structure, scope, and nature of the group or organization including: its relationship, if any, to a foreign power; the identity and relationship of its members, employees, or other persons who may be acting in furtherance of its objectives; its finances and resources; its geographical dimensions; its past and future activities and goals; and its capacity for harm.
There's our answer. The opening of an enterprise investigation covers the FBI's tail legally. If questioned on why they appear to be targeting other individuals in the Trump campaign beyond the original four, they can respond that they're simply trying to identify all the members who are "associated in fact." It might take some imagination, but creative investigators will find justifications to start looking at more and more people in the campaign.
And that takes us back to Comey's claim that the FBI wasn't investigating the Trump campaign or Trump himself. Technically, that's true. I don't expect anyone will ever discover an FBI file captioned "Trump Presidential Campaign," or "Donald J. Trump, aka, The Donald." But no one who has perused the text messages between Peter Strzok and Lisa Page can doubt who the real target of Crossfire Hurricane was. Nor can anyone who has perused the list of Mueller's prosecutors--chock full of donors to the Clinton campaign--entertain any doubt as to their target. Everything points in the same direction: Trump. But this enterprise investigation device allows Mueller's witchhunt to continue, even after three of the original four targets have pleaded to totally unrelated charges and the case against Carter Page has become little more than a sick joke. They've been replaced by Jerome Corsi, Roger Stone, Don Trump Jr., maybe Jared Kushner.
There's another aspect of Comey's most recent testimony that's worth examining. Comey was questioned closely by Trey Gowdy regarding what his (Comey's) knowledge was concerning the actual origination of the enterprise investigation: Did Comey read the opening EC, did he know what the factual basis for the investigation was, did he know who wrote that EC? To all these and related questions Comey, non-credibly in my opinion, disclaimed all knowledge. According to Comey, case openings occur far below the Director level in the FBI's hierarchy; he may have known in a general way that a new case had been opened but would have had no knowledge of virtually any details and, apparently, little interest.
I find this simply unbelievable. For starters, Crossfire Hurricane should have qualified as a Sensitive Investigative Matter (SIM). Here's what DIOG tells us about SIMs:
8.8.1 SIM Categories in Enterprise Investigations
A SIM is an investigative matter involving the activities of a domestic public official or domestic political candidate (involving corruption or a threat to the national security), ...Now, Comey was correct in stating that a SIM can be opened by a Section Chief, but that's not the whole story. The Section Chief may be the official who opens the SIM, but:
188.8.131.52 SIM El Opened by FBIHQ with Section Chief Approval
A SIM Enterprise Investigation opened by FBIHQ requires prior OGC review and SC approval, and written notification to DOJ ... The responsible FBIHQ operational section must notify, in writing, the appropriate DOJ ... National Security Division (NSD) official as soon as practicable ...OGC is the FBI's Office of General Counsel. At the time in question the General Counsel--essentially, Comey's government lawyer--was James A. Baker, Comey's long time friend and colleague. It's difficult to believe that Baker--having been informed that some Section Chief wanted to open an enterprise investigation that would include a former general and head of DIA who was rumored to be slated for a top position in any Trump administration, Trump's campaign manager, and assorted foreign policy advisers, on the theory that they were all Russian agents--would not have popped his head into Comey's office and said something like, "Hey, Jim, you're not gonna believe this, but ..." Not only that, but since the information about this case opening would be sent to DoJ's National Security Division, who would believe that DoJ would not call Baker, or perhaps Comey himself, and ask, "Is this for real?" Well, unless the DoJ attorney handling it was Bruce Ohr.
About Rosenstein's Authorization Of A Special Counsel
Let's return to Rod Rosenstein's letter authorizing the SC. On it's face, it may appear to be perfectly on the up and up. The SC is, in effect, simply piggy backing on Crossfire Hurricane. Crossfire Hurricane was already up and running, and Rosenstein took it's predication and handed it off to Mueller. But there are a number of problems with that.
The first problem is that Rosenstein's rationale is threadbare at best: "to ensure a full and thorough investigation of the Russian government's efforts to interfere in the 2016 presidential election." Why could that not be accomplished by the FBI, the nation's lead CI agency, an agency set up to investigate such matters, and the agency whose agents would, in any case, be tapped to do the investigating?
There's another problem with that rationale. While it sounds somewhat reasonable, in fact it doesn't jibe with the actual authorization that follows. As we have seen, the Crossfire Hurricane enterprise CI investigation that Mueller took over was NOT simply an investigation into "the Russian government's efforts to interfere in the 2016 presidential election." It was specifically an investigation into four Americans associated with the Trump campaign, and Rosenstein's letter specifically refers to this fact by stating as clarification: "any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump." The letter, in effect, assumes as warranted what in fact needs to be demonstrated: that any Russian "interference" was mediated through the Trump campaign.
And that is the major problem. The Rosenstein letter assumes the validity of the Crossfire Hurricane investigation's predication. But we have witnessed numerous FBI officials acknowledge that the main source of the predication--the Steele dossier--had never been verified in any of its details. To rely solely on the supposed reliability of Steele as a source is, as I have argued, unwarranted in general. It is even less warranted when we bear in mind that Steele was doing opposition research for the Clinton campaign, as an employee of Glenn Simpson's Fusion GPS. For the FBI to state, as it did in its Carter Page FISA application (Section III. B), that Simpson never told Steele what the motivation was for Simpson's research into Trump's "ties to Russia" is simply insulting to anyone's intelligence and part of a clear fraud on the FISA court.
At a minimum, Rosenstein should have offered some statement in his letter certifying that he had reviewed the relevant investigative documents and had found upon review that they presented "an articulable factual basis" that would warrant hobbling the new administration in this way. Rosenstein's failure to provide such assurances leads inevitably to the suspicion that hobbling the new administration was exactly what he had in view--a suspicion that is only strengthened by the recent revelations concerning Rosenstein's meetings with Andrew McCabe regarding measures designed to actually remove Trump as president. One wonders whether such issues were discussed before the authorization of the SC, as they surely have been since.
What Is To Be Done?
An FBI investigation is not a forever thing--the plug can be pulled, for cause. The case agent should be constantly reviewing his findings to be sure that the investigation is still warranted, and the prosecutor who is assigned to the case should be doing the same thing. If they realize at some point that the original predication has turned out to be incorrect, then that's the point at which the case should be terminated. The case should not be continued as simply an investigation of a person, in which new theories are constantly being tried out in the hopes of making something stick.
It appears to me transparently clear that that point has long since passed with Crossfire Hurricane. After more than two years the evidence that the original predication was bogus--a political hit job dressed up as a "narrative" that I call the Russia Hoax--seems overwhelming. Further proof can be found in the shameful convictions that Mueller has obtained against Flynn and Papadopoulos, which amount to the criminal equivalent of jaywalking and have nothing to do with Russia. The conviction of Manafort, while in a different category, is also totally unrelated to the predication for Crossfire Hurricane. As for the monstrous injustice that has been perpetrated against Carter Page, words fail me. Where, now, is the "enterprise"?
The true scandal in all this is the perversion of our justice system. President Trump's nominee for Attorney General, William P. Barr, has in public remarks extending at least a year back, expressed criticism of Mueller's handling of the Special Counsel's office in its hiring, as well as support for some of President Trump's expressed views--if not the Trumpian style. He is certainly aware of the difficult political situation he would be stepping into. The hope is that he will enter office with a determination to recover for the FBI and DoJ the respect and reputation that they show no signs of regaining under the leadership they have had for the past two years. If Barr is to accomplish this, he will need to take the Special Counsel bull by the horns and conduct a searching inquiry into the origins and legitimacy of Crossfire Hurricane, respecting no person or institution in pursuit of the public good.