It is a confounding question. But Comey is one of several Justice Department officials appointed by Obama and kept on by Trump. Perhaps mindful of how difficult Democrats would make it for his nominees to be confirmed, the new White House hoped to minimize the sense of disarray in its early days. Comey can also be a singularly charming, impressive fellow in a one-on-one setting—smart and funny, without the condescension sometimes on display in public settings. He exudes confidence and competence. He surely swept the new boss off his feet. Plus Trump, for all his Apprentice bravado, has a real-life aversion to firing people. With the Russia frenzy rising, however, the most significant thing Comey could do simultaneously to keep his job and preserve the investigation was to assure Trump that he was not a suspect—that the FBI, that Comey himself, did not have the new president under investigation and did not suspect him of wrongdoing.
The best way to do that was to highlight the lewd aspects of Steele’s reporting while downplaying the rest. In Senate testimony after his May 2017 dismissal, Comey explained that his plan at the January 6 briefing of Trump was to alert the president-elect to “personally sensitive aspects of the information assembled during” the ICA—to let him know of “the existence of this material even though it was salacious and unverified”; to let Trump know that they were trying “to minimize potential embarrassment to” him.
This was a very crimped depiction of Steele’s allegations. And even though the full dossier was published just four days after Comey spoke with Trump, that did not reveal the full story behind the dossier’s genesis and the extent of reliance on it by the Obama Justice Department and the FBI. That is why, when Trump hosted Comey for dinner at the White House on January 27, and when they spoke on other occasions, Trump kept coming back to the purported pee tape, expressing disgust and ruminating over whether he should direct the FBI to investigate it so he could prove it did not happen. Because of the way he was briefed, the president was focused only on the salacious material, not the more significant, traitorous allegations that Steele had made and that the FBI was acting on.
A thought experiment. What do you suppose we’d have heard from the president if, at the briefing, Director Comey had said something along these lines:
Mr. President-Elect, that salacious story about prostitutes in Moscow is part of a set of reports by a former British intelligence officer, compiled during the 2016 race and paid for by the Clinton campaign. It alleges that you and your campaign engaged in a “conspiracy of co-operation” with the Russian government, in which your point man was Paul Manafort, who used your adviser Carter Page as an intermediary. Page is said to have met with two top Putin operatives in July while in Moscow, where they discussed (a) the possibility that you’d drop sanctions in return for significant financial considerations, (b) their willingness to share compromising information about Hillary Clinton with you, and (c) compromising information about you that they possessed and could use against you if you were not accommodating toward Russia. Later, the reports state, your lawyer, Michael Cohen, was dispatched to Prague for a secret meeting with Russian officials to work out paying the hackers of the DNC emails. It is further alleged that Putin’s regime had your full knowledge and support in leaking the DNC emails to WikiLeaks; in fact, we’ve been told you were running your own reciprocal operation and sending information to the Kremlin.
There is much more in the reports, but that is the gist. Although the intelligence community has not been able to verify these allegations, the FBI has great confidence in the former British intelligence officer who provided the information to us. Therefore, in October, just three weeks before Election Day, we and the Justice Department incorporated these allegations in an application to the Foreign Intelligence Surveillance Court for a warrant to monitor all of Carter Page’s communications—including from when he was in Moscow in July, allegedly meeting with Kremlin operatives on your behalf. As a matter of fact, in the next few days, we’re planning to reaffirm these same allegations about your campaign and the Kremlin in another warrant application so the court can renew the surveillance for ninety more days. Come to think of it, that would be the first ninety days of your presidency, so congratulations on that.
Suffice it to say that, if President-elect Trump had been given a briefing of this breadth, his reaction would have been comparable to Mount Vesuvius circa 79 A.D. He would have figured out in short order, from competent advisers, that this investigation had proceeded largely at the urging of his political opponents, in the absence of corroboration. The chance that he would have retained any official who had had a hand in approving or conducting the investigation would be closer to “are you kidding me?” than slim.
To sustain the investigation by minimizing Trump’s relevance to it, the FBI and the Justice Department had to redefine the concept of being “under investigation.” For purposes of the Trump–Russia probe, a person was deemed “under investigation” only if he was the formal target of a FISA warrant—as if the warrant application were the totality of the investigation, as if the person formally targeted for surveillance were the only person of interest to the FBI. By thus bowdlerizing what it means to be a suspect, Comey could repeatedly assure Trump that he (Trump) was not “personally under investigation.” After all, Trump himself was not the target of the surveillance—he was not alleged in the FISA warrant application to be an “agent of a foreign power”; only Page was … for clandestine activities allegedly undertaken on Trump’s behalf.
This is a distorted understanding of how investigations work. Whether eavesdropping is done in criminal or national-security cases, the objective is always the same: to uncover the full scope of a conspiratorial enterprise. The point is to identify all of the conspirators, to demonstrate how the scheme operates, and to show the complicity of the most insulated leaders. Carter Page may have been the surveillance target named in the FISA warrant, but he was of low rank in the suspected conspiracy. The point of monitoring Page was to determine exactly what he was doing and, just as crucial, who was directing him. In the conspiracy outlined by Steele, Page was a virtual nobody. His only relevance was vis-à-vis Trump.
The investigation was about suspected Kremlin complicity with Trump; it was about the possibility that an adversary regime was in a position to blackmail the president of the United States. It was never about Carter Page.
From the FBI’s perspective, there was no downside to telling Trump he was not a suspect. As Comey acknowledged in his testimony, any assurances that Trump was not under investigation were only “as of that moment.”4 Trump’s status could change instantaneously if the investigation of other people, such as Page, turned up any evidence implicating Trump. In a normal investigation, to be in that status is to be a subject of the investigation, not a person who is not a suspect.
This dissonance was not lost on the FBI. Before meeting with Trump on January 6, Comey met with his own FBI “leadership team” of advisers and discussed the plan to tell Trump he was not a suspect. At the Senate hearing, the former director was asked whether all of his advisers agreed with the plan. Comey’s answer was telling:
Was it unanimous? One of the members of the leadership team had a view that, although it was technically true [that] we did not have a counterintelligence file case open on then-President-elect Trump[,] … because we’re looking at the potential … coordination between the campaign and Russia, because it was … President-elect Trump’s campaign, this person’s view was, inevitably, [Trump’s] behavior, [Trump’s] conduct will fall within the scope of that work.
Comey’s unidentified adviser was clearly right: The fact that there was not a formal case file open on Trump just meant that he was not the express target of a FISA warrant. Trump was still the most central figure in the investigation.
The former director overruled his adviser, but he elaborated that their difference was over words, not substance:
I thought it was fair to say what was literally true: There is not a counterintelligence investigati
on of Mr. Trump. And I decided, in the moment, to say it, given the nature of our conversation.
Comey thus went ahead with the plan to tell Trump he was not under investigation. But his adviser was not swayed by the director’s insistence that being under investigation required having a formal file open as a FISA surveillance target. Comey recalled that this adviser’s position
didn’t change. His view was still that it was probably—although literally true, his concern was it could be misleading, because the nature of the investigation was such that it might well touch—obviously, it would touch the campaign, and the person at the head of the campaign would be the candidate.
Right. The Obama administration’s investigation was about the candidate: Donald Trump.
Criminalizing Politics: The Investigation of General Flynn
Could anything have made the Obama administration giddier than the prospect of making a criminal case on Michael Flynn?
Flynn is a retired army lieutenant general, who made his mark on modern insurgent warfare by helping revolutionize the rapid dissemination of battlefield intelligence. He was promoted by President Obama to lead the Defense Intelligence Agency. He is also a head-strong man who got himself on Obama’s bad side by questioning counterterrorism strategy, particularly the administration’s weakness on Iran. He was detested by Obama political and national security officials for calling them out on politicizing intelligence. The FBI was not a fan, least of all Deputy Director Andy McCabe, because Flynn had supported an agent who claimed the Bureau had subjected her to sex discrimination.5
After Obama fired him from the DIA post, Flynn became an important Trump campaign surrogate, which gave him a national media platform from which to rip Obama’s foreign policy. When Trump won the election, Obama counseled him against tapping Flynn for a top administration job. Trump ignored the advice, naming Flynn his national security advisor.6 Flynn worked on the Trump transition and incensed Obama officials by lobbying against a U.N. resolution against Israel that the administration, in its profiles-in-courage style, orchestrated then abstained from voting on. The collusion narrative notwithstanding, Russia rebuffed Trump’s entreaties on the Israel resolution.7
Obama’s late December imposition of sanctions on Russia got the attention of Sergey Kislyak, the Kremlin’s ambassador to the United States, just as the administration figured it would. Kislyak, who has a wide, bipartisan circle of Washington contacts, got in touch with Flynn, who was dealing with a variety of foreign counterparts as a member of Trump’s transition team.
The next day, December 29, Flynn called the president-elect’s Mara-Lago resort in Palm Beach, where senior transition officials were cobbling together a new administration for the candidate no one had expected to win. Flynn and his colleagues discussed the Russia sanctions and their potential effect on Trump’s foreign policy. Flynn was advised to convey the message that Russia should resist any urge to escalate the situation. Immediately afterwards, Flynn called Kislyak. The topic of sanctions was discussed, but not a deal on sanctions. Rather, Flynn simply urged that Russia limit itself to no more than a reciprocal response, rather than escalate matters.8 This, obviously, is what we should hope any responsible American official, regardless of party, would propose.
As an overt agent of Russia, Kislyak was subject to FISA monitoring; one would think Flynn, a former DIA director, would have suspected as much.9 In any event, the FBI counterintelligence agents were not only eavesdropping on Kislyak’s discussion with Flynn; they were doing so in consultation with “Obama advisers,” as The New York Times gently described them.10 The Times elaborated:
Obama officials asked the FBI if a quid pro quo had been discussed on the call, and the answer came back no, according to one of the officials, who like others asked not to be named discussing delicate communications. The topic of sanctions came up, they were told, but there was no deal.
Asked not to be named discussing delicate communications. That’s a good one. Let me translate. The officials did not want to identify themselves because they were committing a felony: FISA intercepts are classified, and disclosing them to unauthorized people, including the media, is a crime.
Two things, in any event, should be observed. First, the Flynn in-vestigation was a vindictive farce: even if there had been a substantive discussion of sanctions, there would have been no law violation, but there was not such discussion—just the mere mention of sanctions, prompting Flynn’s proper response: don’t escalate. Second, the Flynn–Kislyak communication became the grist for an outrageous classified leak for which, to this day, no one has ever been prosecuted.
As we’ve seen, the FBI and Justice Department were forced to disclose portions of the House Intelligence Committee Report that they had initially redacted. We thus learned that, for some period of time during 2016, the FBI was conducting a counterintelligence investigation of General Flynn. There are still relevant redactions, so the basis for this investigation remains unclear. It apparently took place during the campaign, but whether it was related to Moscow’s cyberespionage activity is unclear (though it seems unlikely). It is quite possible, though, that the FBI opened an investigation on the decorated thirty-three-year combat veteran of the U.S. Army on suspicion that, yes, he was an agent of Russia engaged in clandestine activity against the United States.
It was Director Comey’s recollection that he had “authorized the closure” of that investigation “by late December 2016.”11 It is unclear whether the investigation was actually closed. In the meantime, the Obama administration took the position that Flynn’s conversation with Kislyak could be a criminal offense. This was absurd. There was no illegality in Flynn’s communications with officials of foreign governments. Of course, Trump was not yet president and there was post-election fervor over Russia, so if Flynn had engaged in negotiations with Kislyak, it would have been politically boneheaded. But not illegal. President Trump eventually dismissed Flynn as national security advisor on February 13, 2017 (after only three weeks on the job), and Flynn was later prosecuted by Special Counsel Mueller (we’ll come to that). But Flynn’s firing and prosecution were not due to his discussion of sanctions with Kislyak, as tirelessly portrayed by the narrative. Flynn was fired for inaccurately describing his Kislyak conversation to Vice President Pence and other administration officials, and he was prosecuted for summarizing that conversation inaccurately to FBI agents.
On January 12, 2017, The Washington Post’s David Ignatius published a leak from an unidentified “senior U.S. government official,” describing Flynn’s communications with Kislyak after Obama announced the anti-Russia sanctions.12 Naturally, the classified leak was not the crime that interested the journalist; Ignatius instead focused on an imaginary crime—one which just happens to have been under consideration at that very time in the top tier of the Obama Justice Department: Flynn’s flouting of the Logan Act.13
Deputy Attorney General Yates was theorizing that it might be possible to prosecute Flynn under this vestige of the John Adams administration, a dark time for free-speech rights. The statute purports to criminalize “any correspondence or intercourse” with agents of a foreign sovereign conducted “without authority of the United States”—an impossibly vague term that probably means permission from the executive branch. No court has had an opportunity to rule that the Logan Act is unconstitutional because, realizing its infirmity, the Justice Department never invokes it. In its 219-year history, the Logan Act has not resulted in a single conviction; indeed, there have been only two indictments, the last one in 1852.14
Yet, the Logan Act is what Yates had in mind. In later Senate testimony, she recounted that, in the first days of the new administration, she and Mary McCord (who had replaced John Carlin in Justice’s National Security Division) brought their ongoing concerns about Flynn to the attention of Trump White House Counsel Don McGahn. According to Yates, “the first thing we did was to explain to Mr. McGahn that the underlying conduct that General Flynn engaged in was problematic
in and of itself.”15 The “underlying conduct,” of course, was Flynn’s communication with Kislyak—his temerity to engage in talks with foreign officials without approval from the Obama administration.
Since this Logan Act theory does not pass the laugh test, Yates also had a fallback rationale: “blackmail.” This may have been even more ludicrous.
It turned out that the Obama administration had not only been surveilling Flynn’s communications with Kislyak; it had been monitoring the Trump transition team’s political commentary. (Once you’ve been surveilling your political opposition for a few months, it’s apparently hard to stop.) Obama officials had thus heard Vice President Pence (among other Trump spokesmen) deny that Flynn had discussed sanctions with Kislyak. They deduced that Flynn must have misled his superiors. This was preposterous. The Justice Department would have been very busy indeed if every untrue statement made publicly by an Obama official had been grounds for investigation. It was no business of federal prosecutors whether Pence had inaccurately reported Flynn’s conversation in a press statement, or whether Flynn had inaccurately informed Pence. Yet, Yates surmised that Russia now had “leverage” over Trump’s national security advisor: the Kremlin knew Flynn had discussed sanctions with Kislyak and, hence, must have lied to Pence. So, the—um—reasoning went, Putin could secretly threaten to expose this lie, which would intimidate Flynn into doing his bidding.
Got that? Me neither.
That’s because its silliness is palpable. First, Flynn and Russia also knew that the U.S. intelligence services had a recording of Flynn’s conversation with Kislyak. Blackmail only works if the compromising information is secret. The very fact that Yates knew what was on the recording illustrates that Russia had no unique knowledge it could hope to exploit against Flynn. In fact, as the Kremlin had to know, so many American officials were aware of the Flynn–Kislyak conversation that one of them had leaked it to David Ignatius. Second, Russia would not have concluded that Flynn necessarily misled Pence just because Pence repeated an inaccuracy. Broadcasting misinformation about diplomatic contacts is common—it was the story of Obama’s Iran deal. The Kremlin would probably have assumed that the fledgling Trump administration was telling a politically useful lie: the media-Democrat complex was so agitated about Obama’s Russia sanctions that, if they admitted discussing them, Trump officials risked cries of “Treason!”
Ball of Collusion Page 39
