In the interim, on October 20, with the FISC due to approve the Section 702 certifications in six days, NSA chief Rogers asked for and received a briefing from the NSA’s compliance office on the fundamental baseline review of Section 702 compliance issues that he had ordered back in April. He was told that the audit turned up numerous additional violations, including “about” query infractions. Rogers ordered that “about” inquiries be shut down, and alerted the NSD of this directive.47 Four days later, on October 24, prompted by Rogers’s additional information about rampant derelictions with respect to the minimization instructions currently in place, the government finally gave the FISC an emergency oral notice that there were serious compliance issues. Rather than green-light certifications and new minimization instructions, which were due in just two days, the FISC scheduled a hearing for October 26.48
At the hearing, the government confessed to various irregularities, most notably that it had for years been unlawfully gathering intelligence on Americans—specifically, using U.S. person identifiers to query the upstream database, in violation of the prohibition that had been in place since 2011. The government conceded that Obama administration national security officials had been aware of the broad scope of the problem since at least January 2016 when the NSA’s IG report was issued—a report that itself had been triggered in early 2015 by the NSA’s awareness of widespread compliance issues.
The FISC found breathtaking what it described as the government’s institutional “lack of candor.” The judges ascribed this mendacity specifically to the NSA. Clearly, though, this was an allusion to NSA compliance problems that stretched back to the 2008 enactment of Section 702, misrepresentations about which the FISC had scalded the agency on past occasions.49 Nevertheless, the serious violations reported in late 2016 would not have been uncovered had Rogers not pushed the issue to the fore. The internal audits that had exposed wrongdoing (including the FBI’s failure to monitor private contractors with whom it improperly shared FISA information) had been known for months, not just to the NSA, but to the Justice Department’s NSD, the FBI, and the Office of National Intelligence Director Clapper.
This FISC delayed certification of the next year’s Section 702 collection programs until April 2017, keeping the existing programs in place on the basis of promises that “about” collections had ceased and other steps were being taken to determine the full scope of compliance issues and address them. The court issued its order approving the certifications on April 26, by which time the government agreed to abandon “about” collections and purge data that had been collected in likely violation of the Constitution under the prior, ineffective minimization instructions.
In the interim, on November 8, Donald Trump won the United States presidential election. Nine days later, on Thursday, November 17, Admiral Rogers went to visit the president-elect at Trump Tower in Manhattan. Rogers did not notify his superiors—Clapper and Obama Defense Secretary Ashton Carter—of the trip. It has been plausibly speculated that Rogers met with Trump and his transition team to discuss a position in the new administration, perhaps to replace Clapper as National Intelligence Director. Intriguingly, on the weekend that started the day after Rogers’s visit, the president-elect abruptly moved the transition operation from Trump Tower to his private golf club and estate in Bedminster, New Jersey.50
There is surmise in pro-Trump circles that Rogers alerted the president-elect to the existence of the Obama administration’s Trump–Russia investigation and the possibility that his Trump Tower offices were under various forms of surveillance. This seems highly unlikely. President Trump, who is no shrinking violet and who has access to all the nation’s intelligence secrets, has never claimed that he moved his transition operation to Bedminster because of something Rogers told him. As we shall see in more detail, the president-elect was briefed on the Russia investigation and told he was not a suspect (misleadingly, I believe), on January 6, 2017. That is, two months after he met with Rogers, he does not appear to have known much about the probe—or much of anything about its focus on the Trump campaign.
Furthermore, in his now famous claim that the Obama administration had surveilled his Manhattan offices, posited in a series of tweets on March 4, 2017, Trump said he had “just found out that Obama had my ‘wires tapped’ in Trump Tower just before the victory” (emphasis added). These tweets were posted four months after Trump’s meeting with Rogers.51 There could have been many good logistical and security reasons for moving the transition operation from heavily trafficked Midtown Manhattan to a rural six-hundred-acre setting, and for doing it on a weekend. Meanwhile, in March 2017 congressional testimony, Rogers expressly denied any knowledge—at least on the NSA’s part—that the wiretapping alleged in Trump’s tweet had taken place.52
There is, nevertheless, reason to believe that Rogers’s visit to Trump caused angst in the Obama camp—angst that had been growing for weeks. Within days of the Trump-Rogers meeting, anonymous “administration and intelligence officials” leaked to The Washington Post and The New York Times that President Obama had been considering removing Rogers from his NSA perch. Elaborating, the papers reported the push for Rogers’s dismissal—at a time, mind you, when Obama’s term was about to expire and there was no possibility of confirming a replacement NSA chief before Trump’s inauguration—was coming from Director Clapper and Secretary Carter (both of whom were also about to leave government service).53
In the shopworn style of Washington knee-capping, there was no coherent explanation for this deliberation over an untimely sacking—Rogers was alternatively said to be skittish about the Obama administration’s purported focus on fighting ISIS (which had been such an Obama priority that ISIS had annexed a swath of Iraqi-Syrian territory that was bigger than Britain); too aloof, acerbic, and militarily wired for the sensibilities of NSA’s civilian workforce; and an impediment to an organizational severance between NSA and the military’s Cyber Command (which Rogers actually supported). What seems clear, however, is that the push for Rogers’s ouster began in October (i.e., when Rogers was agitating over the NSA’s compliance issues and the failure to reveal them to the FISA court), but that there was no media reporting about it until Rogers met with Trump and was touted as a possible replacement for Clapper.
Ultimately, President Obama did not remove Admiral Rogers. And President Trump retained him at the NSA, permitting Rogers to oversee the standing up of Cyber Command as a “unified combatant command” (a lofty military status) and endow it with more authority to combat Russian cyber attacks.54 The admiral announced in January that he would retire in the spring, and he stepped down on May 4, 2018, an occasion marked by a ceremony honoring Rogers’s leadership through the Snowden scandal and the NSA’s toughest hours.55
Some scandals have happier endings than others.
CHAPTER SIX
Collusion: Foreign Government, the Obama Administration, and the Clinton Campaign
‘The FBI has a very close relationship with its British counterparts.”
It was February 2018 and former CIA Director John Brennan was appearing on NBC’s Meet the Press, fielding questions about the origin of the Obama administration’s investigation of the Trump campaign. Because of the U.S.–U.K. special relationship, he explained, “the FBI had visibility into a number of things that were going on involving some individuals who may have had some affiliation with the Trump campaign.”1 It was all about the Brits.
More accurate to say: It was all about Brennan,
No one did more to promote the Russia-gate narrative than Obama’s transnational-progressive, hyper-political, rabidly anti-Trump spy chief. Brennan got his start in White House work on Bill Clinton’s National Security Council, becoming the CIA’s daily briefer to the president.2 During the 2016 presidential campaign, he had ambitions of staying in the White House as the new Clinton administration’s spymaster.
It was Brennan who peddled the conspiracy theories of his like-minded European counterparts, fearful
that Trump was bent on disrupting their cherished post-World War II order (in which the United States underwrites security for the EU’s social welfare state). Other officials struggled to establish Russia’s responsibility for the hacking of Democratic email accounts—a high probability, but one based on equivocal evidence rendered more vulnerable by the Obama Justice Department’s failure to investigate it thoroughly. Brennan, by contrast, charged ahead with all the “slam dunk” certitude of his old boss and mentor, George Tenet: not only had the Russian done it, they had done it because Putin wanted Trump to win, and that was because Putin and Trump were in cahoots. And it was Brennan who quite publicly and proudly credited himself with spurring what ultimately became the FBI’s Trump–Russia probe. We’ve seen that it can be risky to take Brennan at his word. On this one, though, the evidence supports him.
First, let’s clear away some underbrush.
As we’ve already detailed, there has been a great deal of misinformation about the origination of the investigation—and even about whether there was a single investigation, as opposed to multiple threads, weaved into a Russia-gate narrative. Much of this misinformation can be blamed on President Trump himself. He could have cleared things up early on by declassifying and publishing the explanatory paper trail. Thus far (as this book goes to press), he has refrained from doing so—though the president has now delegated to Attorney General Bill Barr the authority to declassify information to facilitate Barr’s investigation of the Trump–Russia investigation’s genesis. Equally significantly, the president has made explosive allegations that, while in the ballpark of reality, are rife with inaccuracies. This has given intelligence officials in the United States and elsewhere the opportunity to issue denials in huffs of indignation that belie their underlying narrowness.
Let’s take a notable example. As previously discussed, on March 4, 2017, the president tweeted that his predecessor had his “wires tapped” at Trump Tower. Subsequently, Fox News legal commentator Andrew Napolitano claimed that, according to his informed sources (who appear to include former CIA analyst Larry Johnson), President Obama had surveilled Trump not via American intelligence agencies but by pressing an allied intelligence service into action—specifically, Britain’s Government Communications Headquarters.3 GCHQ is Albion’s analogue to the NSA, specializing in international signals intelligence and cryptology.
In addition to heated rebukes from Obama officials, allies and media mouthpieces, Trump’s allegation prompted pointed denials from current and former intelligence officials (Obama appointees all). James Comey, then the FBI’s Director, put it this way in March 2017 House Intelligence Committee testimony:
With respect to the president’s tweets about alleged wiretapping directed at him by the prior administration, I have no information that supports those tweets and we have looked carefully inside the FBI. The Department of Justice has asked me to share with you that the answer is the same for the Department of Justice and all its components. The Department has no information that supports those tweets.4
Similarly, James Clapper, former Director of National Intelligence, told Meet the Press that, from the national-security apparatus he oversaw, “there was no such wiretap activity mounted against … the president-elect at the time, or as a candidate, or against his campaign.”5
Fox News (at which I am a contributor) briefly suspended “Judge Nap” and distanced itself from his reporting. GCHQ itself heatedly dismissed the explosive allegations, an extraordinary refutation from a secretive sphinx that habitually refuses to confirm, deny, or discuss its spy-ops. “Recent allegations made by media commentator Judge Andrew Napolitano about GCHQ being asked to conduct ‘wiretapping’ against the then president elect are nonsense,” the agency declaimed. Not content to leave it at “nonsense,” GCHQ added that the allegations were “utterly ridiculous and should be ignored.”6
Now, let’s say you’re a normal, sober person, reasonably well-informed but with limited time and attention span for such matters. You hear vehement, sweeping disclaimers from outfits that usually tell you they can neither confirm nor deny the existence of the morning sun. Naturally, you come away thinking that the accusations about their activities—claims of political spying—must have been complete bunk.
Not so fast.
Let’s examine this with care. Stripped of the high-decibel bluster, the FBI, the Justice Department, and the intelligence officials merely asserted that Trump’s claim—that President Obama ordered his phones to be wiretapped—was literally wrong. But as the half-joke goes, Trump is more to be taken seriously than literally. Here, the literal denial was so thin as to be nearly meaningless. Technically, even a rogue president would never order that anyone’s phones be wiretapped; a court would issue such an order, based on representations by investigators and Justice Department lawyers. When their remarks are parsed carefully, we find that the intelligence officials did not deny that there was an investigation involving Trump and his campaign, nor even that activity at Trump Tower was scrutinized. Moreover, GCHQ’s fervid denial—we were not “wiretapping” the “then president elect”—is near gibberish. GCHQ doesn’t actually do much “wiretapping” (the physical placement of a listening device on a telephone circuit)—certainly not in the United States; the word is a vestige from a bygone technological era. And Trump did not claim in his tweets that he was president-elect at the time of Obama’s alleged “tapping”—he said it happened “just before the victory.” Plus, even if GCHQ never targeted Trump’s Manhattan offices for the interception of phone calls, that hardly means it had nothing to do with any intelligence-gathering operations touching on Trump and his campaign.
Put simply, when listening to disclaimers from government officials, their indignation level should never be confused with the scope of their denial.
‘Congratulations, you will be defending yourself’
It is important to understand that Donald Trump was (and remains) incredibly unpopular among Western European elites. He was the first American major party presidential candidate in three-quarters of a century to express skepticism about an unconditional U.S. commitment to the Continent’s security and significance. In that vein, he took aim at NATO, particularly the lavish bureaucratic infrastructure that has outlived the alliance’s original mission and, to Trump’s mind, its value.
“Congratulations, you will be defending yourself,” Trump warned the allies in a lengthy New York Times interview during the heat of the campaign. That would be the consequence, he vowed, if the United States “cannot be properly reimbursed” for the “tremendous cost” our taxpayers bear in having our armed forces protect NATO nations blessed with “massive wealth.” NATO members were not “paying their bills,” and if that did not change, he asserted, the alliance would have to be rethought.7 This was a constant theme of Trump’s campaign: It was time to disrupt the old order. Not necessarily trash it, but renegotiate it so that America was not taken advantage of, not on the hook to assure the security of countries that refused to pony up for their own defense. Why, he wondered, should Americans sacrifice to shield the Continent from Russian aggression while Germany, the biggest, richest NATO country, made gigantic energy deals with the Kremlin, indenturing Europe to the rogue power that, in its empirical Soviet era, was NATO’s raison d’être?8 Candidate Trump elaborated:
We’re paying disproportionately. It’s too much. And frankly it’s a different world than it was when we originally conceived of the idea.… [W]e’re taking care of, as an example, the Ukraine. I mean, the countries over there don’t seem to be so interested. We’re the ones taking the brunt of it. So I think we have to reconsider. Keep NATO, but maybe we have to pay a lot less toward the NATO itself.9
Trump’s oft-expressed agnosticism about NATO and America’s interventions around the world was coupled with blandishments toward Moscow (sweet nothings toward a despotic regime—the sort of thing progressives find seductive when uttered by an Obama or a Merkel). As I’ve said, Trump’s Russia rh
etoric sometimes crossed the line from jarring to infuriating (e.g., the drawing of moral equivalence between American and Russian intelligence operations). I feel the same dyspepsia when the president today talks about his warm friendship with the homicidal maniac Kim Jong-un. But that’s Trump, and you have to take him as he is. I didn’t see Abe Lincoln on the other party’s ballot—the party that didn’t just talk about better relations with anti-American regimes, factions, and organizations but funded, empowered, and embraced them. In any event, it is hardly unusual for an American presidential candidate to depict himself as uniquely suited to pursue the holy grail of cooperative relations with Russia—a posture taken by Obama and most of his predecessors in modern American history. But this is politics, so the Clinton camp predictably framed Trump as a threat to the post-World War II internationalist order that progressives regard as their own creation. He was, in the telling of Democrats and their Euro-chorus, bent on destroying NATO and turning the White House into an annex of the Kremlin.
If anyone could be relied on to toe this political line, it was Brennan. Even allowing that Trump can often be abrasive in a manner beneath his office, it is shocking to find a former director of the CIA upbraiding an American president as “treasonous,” guilty of “high crimes and misdemeanors,” and “wholly in the pocket of Putin.” It is equally stunning to find this recently incumbent U.S. spy chief beginning a typical published remark with: “Just imagine if we had a President who did not live in constant fear of being exposed as a fraud”—and always in a tone that oozes If only I could tell you what I know.10
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