James Baker: Light On Informants And The "Russia" Investigation

It has long been known that the FBI used informants or assets ("confidential human sources" in bureaucratese) in attempts to "lure" persons associated with the Trump campaign into incriminating statements. These "lures" took place both in the United States and abroad (OCONUS, Outside the Continental US). Interestingly, we know from the text messages between Peter Strzok and Lisa Page that the FBI was seeking approval for the use of the "OCONUS lures" already in late 2015, well before Trump had won the GOP nomination and also before Carter Page and George Papadopoulos had joined the Trump campaign. Nevertheless, as soon as Page and Papadopoulos joined the campaign in late March or April, 2016, the FBI swung into action with their informants to target these two. All this is now well known, and it seems notable that the FBI's interest was already focused on Republicans rather than Democrats with ties to Russia and Ukraine.

This knowledge takes on greater importance going forward when we examine the new information to be gleaned from a NYT article yesterdays (h/t/ CTH), in which we learn, all the way at the end, that IG Michael Horowitz has launched an investigation into one of those FBI informants, Stefan Halper:

The inspector general is also scrutinizing another early source of information for the Russia investigation, the people said: Mr. Horowitz’s investigators have been asking questions about the role of Stefan A. Halper, another F.B.I. informant, and his prior work for the bureau. 

Agents involved in the Russia investigation asked Mr. Halper, an American academic who teaches in Britain, to gather information on Mr. Page and George Papadopoulos, another former Trump campaign foreign policy adviser. 

However, Mr. Halper also had additional contacts with other Trump officials that have raised concerns about his activities. In one instance, Mr. Halper reached out to Sam Clovis, a Trump campaign aide; it was not clear whether Mr. Halper had the F.B.I.’s blessing to contact Mr. Clovis. 

Mr. Halper’s contacts have prompted Republicans and the president to incorrectly accuse the F.B.I. of spying on the campaign. Mr. Page has also said he met with Mr. Halper in mid-July 2016, about two weeks before the Russia investigation was opened. 

In addition, the inspector general is examining Mr. Steele’s contacts with Bruce Ohr, a Justice Department official, according to the people familiar with the inquiry. Mr. Ohr, an expert on Russian organized crime and himself a frequent target of Mr. Trump’s ire, spoke with Mr. Steele several times after the F.B.I. terminated its relationship with the former British spy, and relayed information from those conversations to the bureau.

The bit about Republicans "incorrectly" accusing the FBI of spying on the Trump campaign is a nice touch. There can be no doubt that as far back as 2015 the FBI's attention was focused on nothing but the supposed ties of Republicans to Russia.

Many observers have pointed out that much of this investigative activity involving informants targeting associates of the Trump campaign took place months before the opening of Crossfire Hurricane on July 31, 2016--the Full Investigation that most observers assume is identical with "the Russia investigation." How is it, they ask, that the FBI was setting traps or "lures" for Trump associates well before an investigation had been opened?

My explanation has always been that the explanation is to be found in the different types of FBI investigations, which entail authorization for different investigative techniques. Broadly, for our purposes we can identify three categories of investigations: Threat Assessments, Preliminary Investigations, and Full Investigations. Most notably, FISA as an investigative technique is only authorized in Full Investigations, and Crossfire Hurricane was a Full Investigation.

However, the opening of Crossfire Hurricane as a Full Investigation doesn't mean that there wasn't an earlier "Russia Investigation" at the level of either a Threat Assessment or a Preliminary Investigation. Such investigations don't permit the use of FISA but they do permit the use of informants as well as consensual (non-FISA) electronic monitoring in some circumstances. Moreover, there is nothing to say that Threat Assessments and Preliminary Investigations can't run in parallel with a related Full Investigation. In fact, what I think we'll see is that Crossfire Hurricane wasn't actually the "Russia investigation" in the general sense at all. That would have been the earlier Threat Assessment or Preliminary Investigation.

Further help for understanding this situation can be found in the testimony of the FBI's former top lawyer, James Baker, the first day of which was released yesterday. In his testimony, Baker refers repeatedly to a "broader" Russia investigation, clearly implying a distinction between a "broader" Threat Assessment or Preliminary Investigation and the more narrowly focused Crossfire Hurricane--which was a Full Investigation and in which a FISA on Carter Page was obtained.

Below I'll reproduce Baker's testimony in that regard. It starts out in questions about the Carter Page FISA, but Baker refers repeatedly to the "broader" "Russia investigation." Mark Meadows does seize on this distinction, but appears to miss the administrative significance. Note how Baker, a knowledgeable National Security attorney and--in particular--an expert on FISA, proceeds in a basically logical, chronological way that makes the administrative investigatory framework very clear:

• He had been aware of "the broader investigation that we were conducting." The "broader" investigation is about the presumed Russian threat in general. That investigation predated any focus on specific Americans.
• Then he became aware that the FBI had begun to look at particular Americans, among them Carter Page, and he became aware "when the FBI first started to focus on Carter Page.
• When he realized that a FISA would be requested on Page--a member of the Trump campaign--he realized this was a very big deal and inserted himself in a process in which he would not normally have been involved. This, of course, is the point at which a Full Investigation is presumed.

So, Baker's own words:

Mr. Baker. I learned of -- so I was aware when the FBI first started to focus on Carter Page, I was aware of that because it was part of the broader investigation that we were conducting. So I was aware that we were investigating him. And then at some point in time --  

Mr. Meadows. But that was many years ago. That was in 2014. Or are you talking about 2016?  

Mr. Baker. I am talking about 2016 in the summer. Mr. Meadows. Okay.  

Mr. Baker. Yeah. And so I was aware of the investigation, and then at some point in time, as part of the regular briefings on the case, the briefers mentioned that they were going to pursue a FISA, and so as that progressed and as I was briefed on that as time went by, at some point in time, I asked -- I think it was my deputy, Trish Anderson -- when this thing is ready or when it is moving through the system, I don't want to see it at the end, like when it is about to go to the director of certification because then it is hard to make changes then. So I wanted to see it when it was gelled enough but before it went through the process and before it went to the director, I wanted to see it and I wanted to read it, because I knew it was sensitive. 

Mr. Meadows. So is that why you took the abnormal or unusual step in this particular situation, was because it was sensitive?  

Mr. Baker. Yes. 

Mr. Meadows. So you actually got involved because you wanted to make sure that, what?  

Mr. Baker. I wanted to make sure that we were filing something that would adhere to the law and stand up over time.  

Mr. Meadows. So you wanted to make sure that everything was the normal protocol and done properly?  

Mr. Baker. The two things that I was focused on in this case were the probable cause and the description of the source. And I guess the third thing would be the foreign intelligence purpose. I wanted --  

Mr. Meadows. So the probable cause -- and you said you were working on that in the summer of 2016 and that was part of a much broader investigation. So it had nothing to do with the Trump campaign at that point?  

Mr. Baker. I am not sure I know what you mean. I am sorry. 

Mr. Meadows. Well you said a broader investigation. I mean if you are asking for a FISA warrant and you are talking about probable cause, you said it was a part of a broader investigation, obviously, that broader investigation could not -- may be mutually exclusive of the Trump campaign if it is dealing with Carter Page? I mean, what broader -- those were your words not mine. So what broader investigation were you talking about? 

Mr. Baker. So I thought about this as, to me, this was always about Russia. Everything we did had to do with Russia, and what were the Russians up to, what were the Russians doing, how were the Russians engaging with Americans, if at all, and what might some Americans be doing in support of -- knowingly, in support of Russian efforts, or being fooled and duped into dealing with the Russians in some way. And so we were trying to figure out exactly what happened. So I was thinking about that. And then, so we had a very broad investigation of Russia and trying to identify and thwart their activities. And then certain Americans came to our attention for a variety of reasons -- I am happy to talk if you want to. Among them was Carter Page, and then among the various investigative techniques that were being used with respect to him was this FISA. (pp. 95-97)

First a couple observations about the time frame here.

Baker says he became aware that the FBI was "first" beginning to focus on specific Americans in "summer 2016." In fact his awareness was almost certainly sparked earlier than summer--not only because the FBI began focus on the foreign policy advisers to the Trump campaign almost as soon as they joined the campaign but also because of the unusual investigative steps that were taken, which would have regarded high level authorizations: OCONUS lures, for example.

Further, Baker makes it sound as if some significant time elapsed between the focus on Page and the decision to apply for the FISA. In fact, the decision to apply for the FISA would have been part and parcel of the decision to open a Full Investigation on Page. Thus, Baker may not have been privy to every investigative step, but by his own statement he made a point of inserting himself in the process because of the sensitivity of investigating a presidential campaign.

Next, some general remarks regarding Baker's testimony.

As is the case with most of the other witnesses, Baker's testimony is an interesting mix of seeming candor along with what seems to be clear special pleading. Baker wants the questioners to believe that the FBI proceeded cautiously with no untoward motivations in this highly sensitive investigation. What makes this difficult to believe coming from Baker is that he was fully aware of the obviously partisan source of the "information" that was being used to justify what he admits was an unprecedented investigation into a presidential campaign. His long time, good friend David Corn is a notoriously rabid and biased liberal journalist. Michael Sussman was not only the lawyer for both the Hillary campaign and the DNC, but Sussman had only a few months previously been singularly obstructive in preventing FBI access to the DNC server to investigate the alleged "hack."

Beyond those obvious warning signs, Baker was fully aware that the investigation was being based on "information" that was "floating around Washington" and was being aggressively shopped to the NYT even as it was being pushed on the FBI. Would it have been too much to expect that the upper levels of the FBI would, in the course of their weekly briefings on the investigation, would put two and two together and pool their collective knowledge about the sources of this information to assess it for political bias? After all, one of the main--and highly irregular conduits--was Bruce Ohr, who claims he warned everyone involved of the potential for political bias on the part of Glenn Simpson and Chris Steele. But the clear answer is that, yes, it was far too much to expect of this FBI that they would take such an elementary step.

To return to the nature of the various investigations and their significance, I'll reproduce here material from an earlier post regarding James Comey's testimony to HPSCI on the subject. In his testimony Comey explicitly identifies Crossfire Hurricane as being an "enterprise" investigation of "four Americans," none of whom are Trump. That is a Full Investigation, and it's not a general investigation of the Russia threat--it's specifically focused on Americans.

*****

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."

...

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.

Finally we learn exactly what kind of investigation Crossfire Hurricane was: it was an "enterprise counterintelligence investigation into ... Trump campaign associates." One of those associates was Carter Page and the other three are easily guessed from the context. 

*****

There are two important aspects to Comey's testimony, for our purposes.

The first is that, while the earlier hearing was held to discuss Russian "active measures"--a subject that would have been appropriate for a Threat Assessment or a Preliminary Investigation--Comey has very little to say. Instead he refers to the Crossfire Hurricane investigation, but without drawing any distinction between the "broader Russia investigation" and the more narrowly focused Crossfire Hurricane. Why was Comey not eager to provide more detail on Russian active measures? Possibly because to have discussed the FBI's "broader Russia investigation" could have led into some dangerous territory--the Brennan produced intelligence assessment that was seriously flawed but which Comey's FBI had signed on to. While purporting to be the consensus of the Intelligence Community, it was in fact the tendentious product of the CIA and FBI, in which Peter Strzok had played a major role.

The second aspect is that in his later testimony Comey again describes Crossfire Hurricane, but much more specifically. This is important because Rod Rosenstein specifically confined Team Mueller to investigating the Crossfire Hurricane investigation--the one described by Comey in his testimony. Again, by focusing on the Full Investigation--despite it's reliance on the bogus Steele dossier--Comey distanced himself from the true origins of the Russia Hoax, which can be traced at least as far back as 2015.

The renewed interest in Halper--surely a product of AG Barr's new administration at DoJ--indicates a resolve to work back to just those origins of the Russia Hoax well before the opening of Crossfire Hurricane.