The Russia Connection

Why the FBI’s Investigation Into the President Was Unavoidable

By David Kris
Saturday, January 12, 2019, 7:05 PM

The New York Times has reported that, in the wake of President Trump’s firing of FBI Director James Comey, the bureau opened a counterintelligence investigation into the president. At one level, of course, this is not surprising—John Bellinger identified Donald Trump as a potential danger to U.S. national security in 2015, and Benjamin Wittes followed up in 2016 and 2017. There is a lot of information in the public record, much of it recounted in the Times article, about the president’s unusual behavior with respect to Russia. But, of course, on another level it is terribly shocking—and just plain terrible—that the president has behaved as he has, and that the FBI is investigating him.

Although I find the president’s behavior shocking, I am not shocked, or at least not surprised, at the FBI’s investigative response. The idea that the original and overarching FBI investigation concerned Russia, “period, full stop,” as Jim Baker apparently testified to Congress, and that the investigation then evolved to include the Trump campaign and eventually the president himself, is the expected sequence of events. The Russians have been engaged in election interference of one sort or another for years—even before Soviet Ambassador Anatoly Dobrynin offered money to Hubert Humphrey in the 1968 election. So one would expect the FBI to be investigating the Russians in connection with the 2016 election and then to follow the evidence where it led.

The opposite sequence, in which a criminal investigation of Trump or the Trump organization led to the Russians, would have been more unusual, but even that would not be totally unprecedented. Sometimes a criminal investigation morphs into a counterintelligence investigation.

But the idea that a counterintelligence investigation or other FBI counterintelligence  work involving Russian election interference evolved to include the Trump campaign is hardly news. Deputy Attorney General Rod Rosenstein’s appointment order of Special Counsel Robert Mueller directs Mueller to continue the investigation cited by Comey in his March 2017 congressional testimony and specifically includes “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” Here is the relevant excerpt from Comey’s testimony:

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government's efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia's efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

And the Times story regarding the counterintelligence investigation into the president says explicitly that Mueller “took over the inquiry into Mr. Trump when he was appointed, days after F.B.I. officials opened it.”

The Times story also says that the criminal and counterintelligence aspects of the investigation into the president—that is, whether his effort to end the Russia investigation was a crime, a national security concern or both—were melded together. This, too, would be expected. As an example of how criminal and counterintelligence elements of a case often overlap, consider the FBI investigation of Aldrich Ames: The bureau’s work necessarily involved a counterintelligence element as it tried to find the Russian mole in the CIA, but Ames ultimately pleaded guilty to criminal charges under the Espionage Act. Likewise, any effort by Ames to obstruct the investigation into finding the mole in the CIA would have both constituted the crime of obstruction of justice and raised a counterintelligence concern, because such an effort, if successful, would leave the mole in place and allow the Russians continued access to CIA information.

The combined/merged approach is in keeping with the FBI’s Attorney General Guidelines and the bureau’s approach to investigations following the lowering of the “wall” between its criminal and counterintelligence functions after 9/11, as Wittes’s Lawfare piece in response to the Times story explains (citing my book):

The Attorney General’s Guidelines for Domestic FBI Operations are explicit in providing that “all of the FBI's legal authorities are available for deployment in all cases” in order to “protect the public from crimes and threats to the national security and to further the United States’ foreign intelligence objectives.” As David Kris explains in his landmark treatise on national security investigations, “these three strands of authority are now explicitly braided.” As a result, as the guidelines make clear, the FBI’s “information gathering activities” need not be “differentially labeled” as law enforcement, counterintelligence, or affirmative foreign intelligence, and its personnel need not be “segregated from each other based on the subject areas in which they operate.” The guidelines further explain that, “[i]n many cases, a single investigation will be supportable as an exercise of a number of these authorities—i.e., as an investigation of a federal crime or crimes, as an investigation of a threat to the national security, and/or as a collection of foreign intelligence.” There are separate investigative missions, and there are a variety of different authorities, but there is only one FBI.

That language from the Attorney General’s Guidelines provides the background for how to understand what was going on here. While it is shocking that the FBI was investigating the president, it is not really surprising given that the president has done and has provoked so much that is itself shocking.

Nor am I outraged by the FBI’s actions. For several reasons, I think the FBI effectively could not avoid investigating the president under the circumstances presented in May 2017. That is true for at least six reasons:

First, as the Times story explains, the president said and did things in the 2016 campaign that were bizarre and suspicious:

Mr. Trump had caught the attention of F.B.I. counterintelligence agents when he called on Russia during a campaign news conference in July 2016 to hack into the emails of his opponent, Hillary Clinton. Mr. Trump had refused to criticize Russia on the campaign trail, praising President Vladimir V. Putin. And investigators had watched with alarm as the Republican Party softened its convention platform on the Ukraine crisis in a way that seemed to benefit Russia.

Second, there is the Steele dossier, which was first publicly revealed in January 2017, but was in the FBI’s hands before then. People argue about the extent to which the Steele dossier has held up; the best and most recent assessment that I have seen, here, is that it has held up quite well. But in any event, the document was properly taken seriously then given Steele’s history as a former British MI-6 officer and reliable informant (as documented in the Carter Page FISA applications).

Third, consider the investigations into Carter Page (regarding which the first FISA application was filed in October 2016) and others in the Trump campaign, as recounted in this separate Times story. There was a lot of justifiable investigative activity into the campaign and campaign officials and their relationship with Russia and the Russian government. I won’t belabor all of that here.

Fourth, as the Times reports, there was Trump’s behavior with Comey in January or February 2017, asking for the loyalty pledge and asking him to drop the investigation of former national security adviser Michael Flynn (but not formally ordering him to do so, and with awareness that it would continue).

Fifth, the president fired Comey in May 2017, and there is an account in the Times story about how he wanted Deputy Attorney General Rod Rosenstein to include a reference to the Russia investigation as a justification for firing Comey (a request that Rosenstein apparently refused). Regardless of whether this is or is not something that could be the gravamen of a crime, given one’s views of Article II power, it’s obviously of concern from a counterintelligence perspective that Trump had removed the head of the agency investigating Russia, especially after trying and failing in private to extract a loyalty pledge and termination of the Flynn investigation.

Sixth, there is the Lester Holt interview on May 11, 2017, in which Trump explained his thinking about firing Comey by saying, “you know, this Russia thing with Trump and Russia is a made-up story.” He said other things about how the investigation would continue, as his supporters correctly have pointed out, but the linkage between the Comey firing and the Russia investigation is here.

And then, albeit apparently just after the decision to open the investigation was made, the Times reported on May 19 about how, earlier that month, the president in the Oval Office with the Russians said that Comey was a “nut job” and that firing him removed “great pressure because of Russia” that was on Trump.

Given those facts and others, it seems to me that the FBI was not merely justified, but actually compelled, to investigate the president. Such a decision is very sensitive; it has to be done very carefully; there are serious concerns about the security establishment investigating an elected official. It is a horrendous situation and terribly fraught. It is shocking, even if not surprising. There is no good outcome available. But at some point, the choice is either to pursue the investigation or to let it go, and I cannot see how the FBI could have let it go. Pursuing the investigation seems to me to have been the least worst option available.

I should add, parenthetically, that I am not entirely sure from the Times article exactly what the FBI did, administratively, when it began to focus on the president individually. The FBI’s internal procedures, including procedures governing files, are quite complex. Books have been written on the subject. My focus here is much more simple-minded and doesn’t depend primarily on the form in which the investigation was documented, whether it involved a separate investigative file or a sub-file, a separate investigation or a part of the larger one. Nor am I overly concerned, at least for now, about whether the investigation or sub-investigation’s denomination was criminal or counterintelligence.The fundamental questions, I think, are whether the agency must or should follow the evidence if it leads to the president’s conduct, whether the evidence here was sufficient for that to occur, whether the FBI conducted the investigation properly, and the like.

A lot of hard Article II questions are available here, along the lines of those presented in U.S. v. Nixon, but I do not believe that many of them are actually presented. This is separate from whether the situation is fraught and dangerous and the like, as discussed above—it clearly is, and the case presents grave and terrible risk no matter what is done (or not done).

Let’s begin with the assumption that, as the president’s lawyers put it, he “could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.” Even if this is true, as a matter of Article II power, the fact is that he did not do so. In such circumstances, the FBI was right to continue. The president’s inaction probably stems at least in part from a concern that taking strong action would have created a major political problem, and perhaps even provoked a political remedy, e.g., impeachment. This places the FBI’s actions in context of a larger political system of checks and balances. Whatever Trump’s motives, however, in the absence of definitive action by the president, the FBI could and should not, of its own accord, have treated the president, and perhaps those close to him, as a denied area, immune from investigation despite the facts.

This is consistent with what I tweeted in May 2018:

Even after the Times story, that still seems basically right to me.

***

As a postscript, for those who are wonky enough to want more detail on the Attorney General's Guidelines and the standards for opening investigations, I can offer this:

To open a preliminary or full investigation (as opposed to a mere assessment), there must be an “activity constituting a federal crime or a threat to the national security” that “has or may have occurred, is or may be occurring, or will or may occur,” and that “the investigation may obtain information relating to the activity or the involvement or role of an individual, group, or organization in such activity.” Attorney General's Guidelines Part II.B.3.a (page 21).

A “preliminary investigation,” which endures for six months, can be opened “on the basis of information or an allegation indicating the existence” of the circumstance described above. Id. at II.B.4.a.i (page 21).

A “full investigation” requires “an articulable factual basis for the investigation that reasonable indicates” the circumstance. Id. at II.B.4.b.i (page 22).

The FBI can use a somewhat broader set of investigative methods in a full investigation than in a preliminary investigation. See id.

And, of course, some investigative methods, like FISA surveillance, have their own requirements in law—e.g., “probable cause” for FISA. See, e.g., 50 USC § 1804-1805.

To convey a better sense of the relative thresholds, probable cause is and must be a higher standard than what’s required to open the investigation in the first place. Sometimes people get confused about this sort of thing—e.g., suggesting that the standard for issuing a grand jury subpoena should be “probable cause” when that is in fact the standard for returning an indictment. The actual standard for issuing a grand jury subpoena, explained by the Supreme Court in United States v. R. Enterprises, is that anything may be allowed other than a request for which there is “no reasonable possibility” of relevance, and it is enough to uphold a subpoena if the information in question is that the information in question might be “relevant to the general subject of the grand jury’s investigation.” The standard for opening investigations, and using basic investigative tools, is very low. Higher standards would turn the FBI into a purely reactive agency, waiting for someone to walk in with a set of facts already establishing probable cause. That is not what anyone wants or expects from investigative agencies, particularly those whose mission includes protecting national security.

For “Sensitive Investigative Matters,” (SIM) which include investigative matters “involving the activities of a domestic public official or domestic political candidate (involving corruption or a threat to the national security),” there are special rules. See Guidelines VII.N (page 44) and FBI Domestic Investigations and Operations Guide (DIOG) 10.1.2.1 (March 3, 2016 version). A predicated investigation involving a SIM requires approval by the FBI’s Office of General Counsel, for example. DIOG 10.1.4.6.2.

What is most interesting about this is that the FBI has a detailed manual, a set of standard procedures, that regulate its investigations of political candidates and public officials. So, while the case of President Trump is very unusual and no set of procedures could offer complete guidance in such a case, the FBI could at least anchor itself in these as a matter of good order. I don’t know anything about how the internal deliberations went, and perhaps troubling information about them will become public. But as I have said before, for now at least I do not think there is any credible claim that these DIOG procedures were violated.