Ball of Collusion

by Andrew C. McCarthy

  Alternative Investigative Techniques

  Whenever the Justice Department and the FBI apply for a surveillance warrant, whether under FISA or the criminal law, they must convince the court that surveillance—a highly intrusive tactic by which the government monitors all of the target’s electronic communications—is necessary because the information the government seeks “cannot reasonably be obtained by normal investigative techniques.” This is not a box that the government can check with some boilerplate blather. Justice Department guidance instructs that, “when drafting this section of the affidavit” in support of surveillance authority, the Justice Department must include “facts particular to the specific investigation and subjects,” and that “general declarations and conclusory statements about the exhaustion of alternative techniques will not suffice.”36

  Normal investigative techniques include interviewing the subject. There are, of course, situations in which such alternative investigative techniques would inevitably fail—a mafia don or a jihadist is not likely to sit down with FBI agents and tell them everything he knows. But Carter Page was not only likely to do so, he had a documented history of providing information to the FBI—information sufficiently reliable that the Justice Department used it in an arrest complaint and was prepared to call him as a government witness until a guilty plea obviated the need to do so.

  This is a particularly disturbing aspect of the FISA episode. There appears to have been a conscious effort to provide the FISC with a skewed portrait of Page’s background—in particular, his prior dealings with the government. Much is made of the fact that Russian spies attempted to recruit Page. Understated are the facts that (a) Page cooperated with the FBI and Justice Department in a prior investigation; (b) the Russian spies in that case explicitly regarded him as an “idiot” whom they were trying to dupe; (c) since the Kremlin can be as diabolical and sophisticated as the FBI suggests, there is not much chance it would use as a foreign agent in a delicate operation a person regarded as incompetent—much less an Annapolis grad and former U.S. naval intelligence officer who had recently helped the U.S. government convict a Russian intelligence operative; and (d) the Kremlin and its agents would have known that Page—who had never in his life met Donald Trump (and apparently still hasn’t)—did not have the kind of relationship with Trump that would have made Page a suitable conduit for proposing traitorous deals.37

  Frustratingly, we do not know what the Justice Department and the FBI represented to the FISC about why interviewing Page would not have sufficed. For some reason, the Justice Department redacted this portion when the application was disclosed to the public. FBI agents had not only extensively interviewed Page over the years; they had done so as late as March 2016 when preparing for trial in the Russian spy case. Moreover, in Page’s September 25 letter, penned right after the Isikoff article was published two days earlier, Page implored Director Comey to dispatch agents to interview him, offering to tell them the details of his Russia trip and insisting that—contrary to Steele’s allegation—he had not met with any sanctioned Russians while in Moscow. The FBI evidently never responded to the letter.

  Furthermore, by the time the Justice Department and FBI submitted the FISA warrant application in October, their informant Stefan Halper had been in regular communication with Page for nearly four months. Use of a confidential informant is yet another alternative investigative technique that can make electronic surveillance unnecessary. Halper remained in contact with Page into September 2017 (when, not coincidentally, the FISA coverage lapsed and was not reauthorized). With Page both available for formal interviews by the Bureau, and subjected to covert interviews by the Bureau’s informant, what could be the justification for arguing that there were no alternatives to monitoring all of Page’s emails, texts, and phone calls?

  A constant theme of the Carter Page FISA misadventure: There appear to be no good answers.

  CHAPTER SIXTEEN

  ‘Flood Is Coming’

  On her way out the door and out of her job as national-security adviser, Susan Rice wrote an email-to-self.1 Except it was not really an email-to-self. It was quite consciously an email for the record.

  As she stroked her White House keyboard fifteen minutes after noon on January 20, 2017, Rice was technically back in private life, back where private people have private email accounts—even notepads if they want to scratch out a reminder the old-fashioned way. Yet, for a little bit longer, Rice still had access to her government email account. She was, as ever, the aide-de-camp—the confidant President Obama had trusted in 2012 to peddle the anti-Muslim video fable to the Sunday shows just days after the Benghazi jihadist attack. Now, though no longer a government official, she was still in a position to generate an official record. With a foot-and-a-half out the door, it was time.

  It was the memo born in a crossfire hurricane. Rice was attempting to sculpt the dispositive historical account of a meeting the Obama White House was fretting over, along with its Justice Department, FBI, and intelligence agencies. The email would masquerade as the contemporaneous account of a powwow that had happened over two weeks earlier, when everything was finally in place to trigger the insurance policy: the plan to envelop the Trump presidency in an investigation the president would be powerless to end; the plan to portray Trump publicly as exactly the compromised tool of the Kremlin the Obama administration had been secretly telling the FISC he was. The plan would subject the new administration to close monitoring by unaccountable bureaucrats, while politically devastating intelligence leaks made Donald Trump a one-term president, if not less.

  “By the book.” Rice was emphatic on that. President Obama, we’re told, insisted that the top national security officials of what he hilariously describes as his “scandal-free” administration must do everything in the Trump–Russia investigation “by the book.”2 Of course, the Book of Common Sense tells you that people who’ve been doing things by the book for years don’t need to be told that. Just as it tells you that a memo like the one Rice hastily planted on January 20, purporting to summarize decisions made fifteen tumultuous days earlier, is not written to preserve an accurate, real-time record of what was decided. It is written to rationalize those decisions in the wake of cataclysmic events—and the storm sure to follow.

  Obama’s Counterintelligence Probe

  Recall that the Obama White House had been involved in the Trump–Russia investigation from the first. That is not a dig. That is the way it is supposed to be. Trump–Russia was a counterintelligence investigation, and such investigations are done for the president.

  Note the contrast. As we’ve observed, criminal investigations are done to build indictments. Prosecution after a criminal investigation is the vindication of the rule of law in judicial proceedings. To be sure, it is constitutionally permissible for presidents to insinuate themselves in such investigations. In our system, investigation and prosecution are innately executive powers, exercises of the president’s authority. Yet presidents know the integrity of the justice system hinges on the perception, as well as the reality, that criminal cases are controlled by law, not politics. They thus customarily limit their active role to the setting of overall enforcement priorities (e.g., more resources for counterterrorism, less for border security), intervening in individual cases only rarely—most commonly, to invoke the pardon power if an injustice has arguably been done. Otherwise, the White House is passive. The Justice Department and its component agencies (principally, the FBI) administer criminal justice under the watchful eye of the courts, which protect citizens by applying the Constitution and congressional law.

  Counterintelligence investigations are different in kind. They are not done to build prosecutions or uphold the rule of law. They are conducted strictly to support the president’s constitutional duty to protect the United States against threats from foreign powers.3 Internationally, this mission is supported by the CIA and other intelligence agencies that engage in the often dangerous business of collecting i
nformation outside the United States, and thus outside the jurisdiction of our law and the writ of our courts. Domestically, however, the FBI functions as the nation’s security service. That is because domestic intelligence collection directly affects Americans. It is conducted within the jurisdiction of American law, so we want it done by a federal agency that is always subject to constitutional and other U.S. legal restraints.

  Because the FBI is also the nation’s premier law-enforcement agency, this means domestic policing and security from foreign threats are housed under the same bureaucratic roof. This distinguishes our system from that of, for example, England, where these functions are handled by separate agencies. The FBI’s dual role can be an advantage: if done within guidelines that protect the rights of Americans, leveraging the law enforcement and intelligence-gathering can improve the performance of both, making us safer. On the other hand, as we’ve seen, the combination has great potential for abuse: due process and privacy protections can be eroded if the FBI uses counterintelligence powers pretextually to conduct criminal investigations—an abuse I used to insist would never happen, but which, alas, was the signature feature of Russia-gate.

  Moreover, the conjoining of police and intelligence functions can cause confusion, not just for the public but for FBI and Justice Department officials. Many of high rank piously obsess over the “independence” of these agencies, as if they composed a separate fourth branch of government, insulated from political accountability. Such talk is constitutional illiteracy. The separation between political authority and law enforcement is prudential, not mandatory. And there is no separation at all between political authority and counterintelligence. To repeat, counterintelligence is not law enforcement. It is a mission carried out by the national security divisions of the Justice Department and FBI, solely to assist the president. In our constitutional system, the responsibilities of protecting the nation from the likes of Russia and determining what intelligence is necessary to do so are entrusted to the elected president. It is the president who is politically accountable to those whose lives are at stake. Unelected bureaucrats play a vital role, but it is a support role, in which they are accountable to the president, and thus to We the People. The history of regimes whose police powers are insulated from political accountability is not a happy one.

  Counterintelligence investigations are done by the FBI but they are done for the president. The Trump–Russia counterintelligence investigation belonged to President Obama, and he was not a passive principal. Remember that when Agent Peter Strzok, fresh back from his secret early August 2016 London interviews, attended the first big, hush-hush inter-agency meeting about the investigation, he was told, “The White House is running this.”4 So it was. Had it not been, there would have been no reason for the White House national security advisor to be writing an eleventh-hour CYA memo—or, rather, a C the Boss’s A memo.

  Obama Knew All About Russia’s Espionage in Real Time

  Rice’s memo concerns a White House meeting on January 5, 2017, when President Obama huddled with national security officials regarding their assessment of Russia’s interference in the election. Of course, Russia had not actually interfered in the election; it interfered in the campaign by publicizing stolen emails and peddling propaganda, most of which was too ridiculous to influence anyone (except, I suppose, the rare voter who decided based on the depiction of Hillary, in Satan’s horns and boxing gloves, squaring off against Jesus).5 No ballots or voting processes were manipulated.

  But let’s not quibble over a good story, which was then being composed. The president had ordered this intelligence assessment to be rushed to completion while he was still in office. By the time of the January 5 Oval Office confab, Obama had already started taking theatrical action based on it. So, let’s pause over the president’s sudden, post-election decision to treat Russia’s provocation as if it were a national security emergency, if not an act of war.

  In reality, Obama and U.S. intelligence agencies had been intimately aware of the Kremlin’s cyber operations while they were taking place during the campaign. Indeed, on August 4, 2016, CIA Director John Brennan cawed about it to his Russian counterpart, FSB chief Alexander Bortnikov. Subsequently, in early September 2016, on the sidelines of the G-20 summit in China, Obama himself delivered directly to Putin what we’re assured was a stern warning to cease and desist. The administration knew exactly what Russia did, in real time and well in advance of the election. In fact, on October 6, Obama’s Office of the National Intelligence Director (James Clapper) and Department of Homeland Security (under Secretary Jeh Johnson) issued a joint statement expressing “confiden[ce] that the Russian Government directed the recent compromises of emails from US persons and institutions, including from US political organizations,” such as the DNC.6

  Yet, the president refrained from any meaningful response. Not only that. When White House National Security Council staffers urged that Moscow be hit with countermeasures that had actual teeth, rather than stern warnings, Rice issued a stand-down order.7 In the meantime, both President Obama and Secretary Clinton, just days before the election, lambasted candidate Trump for daring to question the integrity and legitimacy of the election. At that moment, everything of importance we now know about Russia’s cyber hijinks was already known to the incumbent Democratic administration.

  The chief executive, who had the power to expose and punish Putin’s perfidy, knew all about it and did nothing. In fact, in the immediate aftermath of the election, before a transparently political pivot to the collusion narrative, Obama himself conceded that Russia makes a habit of interfering in American elections, and that its mischief-making is always futile. He acknowledged that 2016 had been no different, neither the nuisance nor its futility. The Kremlin’s “manipulations were not particularly sophisticated,” he opined. “This was not some elaborate, complicated espionage scheme.” Instead, the Russians had merely “hacked into some Democratic party emails that contained pretty routine stuff”—sure, any of us would find that “embarrassing or uncomfortable” if it were our own emails, but “there was not anything particularly illegal or controversial about” the emails at issue here.8

  Just so.

  The blunt fact is that the officials best informed about Russia’s provocation fully understood that it was par for a course played many times over. In the greater scheme of things, it was trivial—as campaign spending and messaging, it was a drop in the ocean. And Democrats, who had spent the entire campaign insisting that Hillary Clinton’s own emails were immaterial to voters, were in no position to claim that the exposure of forgettable emails written by nondescript Democrats was even relevant, much less decisive.

  No one—not Obama, not Clinton, not Putin, and probably not Trump himself—believed Trump was going to win the election. Because Clinton was the certain victor, Democrats made a calculated decision that nothing said or done would even hint that her coronation reflected anything other than the will of the people. Since Russia’s shenanigans had no effect on the election, there would be no retaliation. No escalation would prevent the new Clinton administration from persisting in the Obama legacy of risibly weak responses to Russian aggression. No action would be taken that might inhibit Clinton from entering deals with Putin—maybe more nuclear arms treaties like Obama’s New Start debacle, the kind that get progressives swooning while Moscow builds up its arsenal (and we cut ours).9

  Ten Weeks … and a Choice to Make

  Once Clinton lost, however, all bets were off. Now, in a mere ten weeks, President Trump would take charge of the government’s intelligence agencies and files.

  What did that mean? In just ten weeks, the new president would be positioned to discover that the Obama administration had exploited its foreign counterintelligence powers to spy on the opposition party’s presidential campaign. Donald Trump would learn of the embarrassment, now being kept under wraps, that rampant abuses of surveillance authorities during Obama’s tenure, and energetic efforts to conc
eal them, had prompted the FISC, during a secret October 2016 hearing, to scold the intelligence agencies’ “institutional lack of candor.”10

  It would become apparent to Trump that the Obama administration had been telling the FISC that his campaign was traitorously complicit in Russia’s hacking of Democratic email accounts. Trump would be poised to find out that the FBI, in coordination with the CIA, the State Department, and friendly foreign governments, had for months been running informants at Trump campaign advisers, aggressively asking them loaded questions designed to implicate the campaign in Russia’s hacking operations. He would hear of the “unmasking” of Trump associates in intelligence reporting so that Obama officials, such as Rice and Brennan, could monitor them. It would become clear to Trump that these steps were taken in stealth, withheld even from the Gang of Eight that was created precisely to prevent such audacious executive action in the absence of high-level congressional oversight.

  Most significantly, Trump would grasp that he, as the Republican nominee and now the president, was the target of the investigation. Not the campaign; Trump himself.

  It would inevitably dawn on the new president that, had he not been the target, Obama national-security officials would have given him or one of his surrogates with strong national-security credentials (Rudy Giuliani, Chris Christie, Jeff Sessions, etc.) a defensive briefing to warn that the campaign might be infiltrated by agents of Russia. As Obama Attorney General Loretta Lynch later admitted to congressional investigators, giving such a briefing “is not an uncommon thing to do … in intelligence matters.”11 But instead, Obama officials made a conscious decision to use against their political opposition the counterintelligence powers entrusted in them for the protection of national security against foreign threats. That is, although Obama officials fully realized that providing a defensive debriefing to the campaign would be the standard practice to address concerns about some campaign participants (such as Paul Manafort, Carter Page, and George Papadopoulos), they rejected that option and made a willful decision to investigate the campaign as a corrupt enterprise. Donald Trump’s corrupt enterprise.