On Sunday night, the Wall Street Journal broke a story that U.S. counterintelligence officials “had investigated” the communications of National Security Advisor Michael Flynn as part of a counterintelligence inquiry. This set off a storm of contradicting reports, with the Washington Post asserting that Flynn had been cleared and was not part of the broader investigation into Trump associates’ ties to Russia, and then still other outlets reporting that in fact the investigation was still ongoing.
If you are finding Lawfare useful in these times, please consider making a contribution to support what we do.
This all comes against a dramatic and rather confusing backdrop regarding the state of investigations into Russian interference in the US election. There is the intelligence community assessment of Russia's efforts. There is the unverified dossier produced by a private intelligence company containing a variety of allegations against President Trump and his associates. Though the FBI and intelligence community briefed both then President-elect Trump and President Obama on those allegations, they have apparently not yet made a determination regarding their credibility. The FBI is declining to confirm or deny the existence of ongoing counterintelligence investigations into Trump associates, some of which the media has reported on. Then there are President Trump’s own public statements and conduct, which evince an unusually warm view of Vladimir Putin. On top of this, President Trump’s refusal to heed calls to release his tax returns leave broad and unanswered questions regarding the nature of his financial relationship with foreign governments and companies.
For now there is a lot of smoke, but no fire. And the overlapping inquiries and news reports have made it difficult to track what it is that we know and do not know regarding the status of these investigations. Below, we attempt to disentangle what various news organizations and government officials have confirmed about current investigations and where there is persisting uncertainty.
Executive Branch Investigations into Trump Associates and Ties to Russia
FBI Director James Comey has declined to confirm whether there is an FBI investigation into possible ties between the Trump campaign or Trump associates and Russian activities. To the great annoyance of Democrats still unhappy with Comey’s public statements regarding investigations of Hillary Clinton, Comey stated that he would “never comment on investigations, whether we have one or not,” and intends to conform to the longstanding Department of Justice and FBI policy of not discussing counterintelligence investigations which could compromise sources and methods.
So there is, to date, no official confirmation of any ongoing investigation. However, media outlets have reported—with varying degrees of certainty and clarity—the existence of a number of such investigations. In September, the Washington Post reported a broad investigation into Russian covert operations to influence the election, but did not indicate any connections to the presidential campaigns themselves. Some early reports alleged an ongoing investigation regarding specific links between Trump associates and Russia prior to the election—at Slate and Mother Jones, for example—including some that referenced the dossier materials. But following Buzzfeed’s publication of the complete dossier, the Guardian reported on January 11 that it had:
learned that the FBI applied for a warrant from the foreign intelligence surveillance (Fisa) court over the summer in order to monitor four members of the Trump team suspected of irregular contacts with Russian officials. The Fisa court turned down the application asking FBI counter-intelligence investigators to narrow its focus. According to one report, the FBI was finally granted a warrant in October, but that has not been confirmed, and it is not clear whether any warrant led to a full investigation.
The following day, on January 12, the BBC offered a more detailed account, based on “several sources,” and corroborated by a “senior member of the US intelligence community.” According to this report, the investigation began last April when then-CIA Director John Brennan became aware of a tape of a conversation about money from Moscow being funneled into the US presidential campaign, which was passed to him by an intelligence agency “in one of the Baltic States.”
Seemingly in line with the Guardian reporting, the BBC reported that a FISA warrant had been obtained in October after being rejected as overbroad not once, but twice by the Foreign Intelligence Surveillance Court. However, unlike the Guardian, the BBC story claimed the FISA was not targeted at Trump or any of his associates. While “three of Trump’s associates were the subject of the inquiry,” it said the actual warrant was for “electronic records from two Russian banks.” Those warrants were pursued to trace “transfers of money from Russia to the United States.”
The same BBC story also first reported the existence of a “joint task force” of six U.S. agencies investigating allegations of Russia ties to the Trump campaign. Those agencies included the FBI, DOJ, the Treasury Department, CIA, NSA, and ODNI.
Since the BBC story, numerous other outlets have confirmed with their own sources the existence of an interagency investigation into the matter, including McClatchy DC, the Washington Post, the Wall Street Journal, and the New York Times. Some of the outlets have cast the interagency investigation as a “working group,” and not a formal task force, but all confirm that the investigation is an interagency effort. McClatchy additionally reported that the Treasury Department branch involved was the Financial Crimes Enforcement Network (known as FinCen). The Times reported that the FBI is leading the investigation, and that the “half-dozen” current and former officials who have come forward anonymously had done so because they “feared the new administration would obstruct their efforts.”
Apart from offering details on the interagency task force, McClatchy confirmed the prior reporting of a months-long investigation into Russian efforts to influence the election. It described the subjects of the investigation as including “a few Americans who were affiliated with Trump’s campaign or his business empire and of multiple individuals from Russia and other former Soviet nations who had similar connections.” Specifically, it reported:
Investigators are examining how money may have moved from the Kremlin to covertly help Trump win, the two sources said. One of the allegations involves whether a system for routinely paying thousands of Russian-American pensioners may have been used to pay some email hackers in the United States or to supply money to intermediaries who would then pay the hackers, the two sources said
The informal, inter-agency working group began to explore possible Russian interference last spring, long before the FBI received information from a former British spy hired to develop politically damaging and unverified research about Trump, according to the sources, who spoke on the condition of anonymity because of the sensitive nature of the inquiry.
The day after the McClatchy story was published, the New York Times came out with its own confirmation and scoop. The Times confirmed that an interagency group was indeed undertaking a counterintelligence investigation into Trump associates. It additionally reported that the investigation was examining “intercepted communications and financial transactions” as part of the inquiry. However, it reported that it was “not clear whether the intercepted communications had anything to do with Mr. Trump’s campaign, or Mr. Trump himself. It is also unclear whether the inquiry has anything to do with an investigation into the hacking of the Democratic National Committee’s computers and other attempts to disrupt the elections in November.”
The Times also named the individuals involved in the investigation:
The counterintelligence investigation centers at least in part on the business dealings that some of the president-elect’s past and present advisers have had with Russia. [Former Trump campaign manager Paul] Manafort has done business in Ukraine and Russia. Some of his contacts there were under surveillance by the National Security Agency for suspected links to Russia’s Federal Security Service, one of the officials said.
Mr. Manafort is among at least three Trump campaign advisers whose possible links to Russia are under scrutiny. Two others are Carter Page, a businessman and former foreign policy adviser to the campaign, and Roger Stone, a longtime Republican operative.
The story says that the Manafort investigation began in the spring of 2016, “and was an outgrowth of a criminal investigation into his work for a pro-Russian political party in Ukraine and for the country’s former president, Viktor F. Yanukovych.”
Notably, neither the New York Times nor the Washington Post report the existence of a FISA warrant. Instead, they say only that “intercepted communications” have been examined. There are a number of legal methods that could plausibly account for the types of intercepted communications derived, including FISA, Executive Order 12333, or information shared by foreign intelligence partners. The distinction between legal regimes is important because obtaining different legal process requires more or less evidentiary support.
Reports Regarding National Security Advisor Michael Flynn
A number of parallel, though not necessarily related reports, regarding National Security Advisor Michael Flynn’s contacts with Russian officials have introduced some degree of confusion. Washington Post columnist David Ignatius initially broke the Flynn story on January 12th, citing a senior government official as saying that Flynn had phoned Russian ambassador to the United States Sergey Kislyak “several times” on December 29th, the same day that President Obama levied sanctions against 35 Russian intelligence operatives in retaliation for Russian cyber interference with the 2016 presidential election. The next day, Reuters confirmed Ignatius’ revelation, reporting that, according to three sources, Flynn had made five phone calls with Kislyak between the time that the Russian government was informed about the sanctions and Russian President Vladimir Putin’s decision to forgo reprisals. There have been a number of conflicting reports both from the media and the Trump team regarding the number and nature of calls. At Just Security, Kate Brannen has chronicled those conflicting accounts.
AP has also pointed to inconsistencies in the Trump team’s response about the phone calls. While White House Press Secretary Sean Spicer initially claimed there was only one phone call on December 28th, a transition official confirmed that Flynn had spoken with Kislyak on December 29th, ostensibly about having a U.S. presence for the Syrian peace talks in Kazakhstan. According to NBC, the call on December 29th had not been cleared by the White House, and Spicer claimed this call was to set up a future phone call between Trump and Russian President Vladimir Putin.
Importantly, there is nothing criminal or even necessarily improper about the incoming National Security Advisor having conversations with foreign officials. Nor is it necessarily significant that the U.S. government intercepted Flynn’s communications as the targeting of Russian officials within the United States is commonplace and U.S. officials might interact with targeted individuals. However, there is no reason to think ordinary contacts should spur any kind of investigation.
Last Sunday, however, the Wall Street Journal published a story that U.S. officials “had investigated” Flynn’s communications as part of a counterintelligence inquiry to determine “the nature of [his] contacts with Russian officials and whether such contacts may have violated laws.” The Journal reported that the December 29th calls are a “key issue” in the investigation, but that it also involves “earlier conversations between Mr. Flynn and Russian figures.” It wrote that it “isn’t clear when the counterintelligence inquiry [regarding Flynn] began, whether it produced incriminating evidence or if it is continuing.” [Separately, the Journal story confirmed earlier reports regarding the ongoing inquiry into Manafort, Stone, and Page.]
On Monday, CNN confirmed the Wall Street Journal story regarding the intercepted communications and also reported that “the content of the conversation raised enough potential concerns that investigators are still looking into the discussions, amid a broader concern about Russian intelligence-gathering activities in the United States.”
Then, late Monday night, the Washington Post offered a contradictory report asserting that Flynn had been cleared of any wrongdoing and was not part of the broader investigation into Trump associates’s ties to Russia. To add even more confusion, CBS then aligned with the Journal and CNN’s earlier reports, refuting the Post’s account and reporting that their U.S. government sources say the investigation is still active.
That is more or less where we are today. It appears there are ongoing investigations involving Trump associates and Russia, the precise facts of which are murky. Perhaps, the biggest lingering unknown is the future of these investigations now that President Trump has assumed office. When asked if Trump intended to halt the ongoing investigations, Press Secretary Sean Spicer said that the President “has not made any indication that he will stop any investigation of any sort.”
The SSCI Inquiry
Separately, the Senate Select Committee on Intelligence Chairman Richard Burr and Vice Chairman Mark Warner have announced that the committee is undertaking an investigation into Russian intelligence activities impacting the US election. This kind of congressional inquiry is notable because it falls outside President Trump’s authority to control the executive branch, which offers additional reassurances of independance.
Their joint statement read in part:
The scope of the Committee’s inquiry will include, but is not limited to:
A review of the intelligence that informed the Intelligence Community Assessment “Russian Activities and Intentions in Recent US Elections;”
Counterintelligence concerns related to Russia and the 2016 U.S. election, including any intelligence regarding links between Russia and individuals associated with political campaigns;
Russian cyber activity and other “active measures” directed against the U.S., both as it regards the 2016 election and more broadly.
The Committee plans to:
Hold hearings examining Russian intelligence activity;
Interview senior officials of both the outgoing and incoming administrations including the issuance of subpoenas if necessary to compel testimony; and
Produce both classified and unclassified reports on its findings.
The Committee will follow the intelligence wherever it leads. We will conduct this inquiry expeditiously, and we will get it right. When possible, the Committee will hold open hearings to help inform the public about the issues. That said, we will be conducting the bulk of the Committee’s business behind closed doors because we take seriously our obligation to protect sources and methods. As the Committee’s investigation progresses, we will keep Senate leadership, and the broader body, apprised of our findings.