Resistance (At All Costs)

by Kimberley Strassel

  Indeed, for six long months the DOJ resolutely refused to provide Nunes, Grassley, and others with the most basic of information. The man technically leading this obstruction was Deputy AG Rosenstein, and two facts about him explain the change in the sharing culture under his tenure. The first: Rosenstein had spent his life within the DOJ orbit. By the time he’d been confirmed deputy attorney general in April 2017, he’d ranked as the nation’s longest-serving U.S. attorney. Rosenstein was the ultimate institutionalist, committed to protecting his lifelong employer. The second: Rosenstein’s own name was on the bottom of one of the final Page FISA renewal applications in the summer of 2017. He’d been involved in at least part of the Russia inquiry, had worked with McCabe in launching the Trump probe, and had a personal interest in keeping things under wraps.

  The biggest battle came over documents that Nunes had every right to see. The Intelligence chairman had taken care to keep his probe narrowly focused on issues that pertained directly to the FISA laws that his committee helps oversee; he was acting in a true oversight capacity. He wasn’t asking for paper covered under executive privilege, and his specific requests made clear he was not on a fishing expedition. He also had clearance to see the most classified documents on the planet.

  Nunes spent his first months politely requesting documents, only to be ignored. This prompted his first round of subpoenas, sent on August 24, 2017. Even seasoned members, who were used to interbranch tussles, were floored when the DOJ flatly refused to comply. DOJ and FBI representatives splayed a litany of excuses, every one more ridiculous than the next. They claimed that providing documents might undermine the “integrity” of the Mueller probe—as if special counsel and congressional investigations couldn’t proceed apace. If the goal was truly answers, the more the investigators, the better. They claimed it was too dangerous to provide classified material, as this might undermine sources and methods. But members like Nunes had been looking at just that sort of material for years. They claimed that cooperation might interfere with a separate probe by the Justice Department inspector general. This was the most ludicrous of all. Congress created inspector generals, and in no situation do those internal watchdogs trump legitimate oversight by the legislative branch.

  When Republicans called these bluffs, the DOJ instead turned to delay and misdirection. Nunes was invited in to be briefed by an FBI official—but was ultimately provided nothing of value. FBI Director Christopher Wray sat before the House Judiciary Committee in December and engaged in an epic five hours of stonewalling. He continued to hold out the inspector general probe as his excuse not to answer any questions. His spinning was so over the top that it at times bordered on absurd. Wray at one point claimed that he did not believe he could “legally and appropriately share a FISA court submission” with the committee, since such documents were “all covered with a ‘classified information’ cover.” As if members of Congress don’t have classified clearance, and as if the Judiciary Committee doesn’t have the right to look at the work product of a FISA court system it helped create.

  In the Senate, the DOJ similarly refused to cooperate with document demands from Johnson and Grassley, even ignoring bipartisan requests. The department also refused to make available witnesses, again on the grounds that to do so would undermine other probes. In early December, the Mueller team acknowledged that Peter Strzok, one of the lead investigators on Trump-Russia, had been abruptly removed from the special counsel’s team after the DOJ inspector general discovered a tranche of highly partisan text messages he’d exchanged with his lover, FBI lawyer Lisa Page. The first of those texts became public about a week later, showing Strzok and Page variously referring to Trump during 2016 as an “idiot” and “loathsome” (to name a few), while also expressing their clear preference for a Clinton presidency. The duo at one point discussed an “insurance policy” in the unlikely event Trump were elected. Despite this explosive new information, the DOJ would not make Strzok or Page or other key witnesses available for interviews.

  Nunes finally threatened to bring contempt charges against Rosenstein and Wray and gave a deadline of January 3, 2018. The DOJ at that point pulled a stunt for the ages. Throughout this entire fight, Republicans had been learning about and focusing more on the dossier. They’d discovered in the fall that Democrats had funded it and were highly suspicious it had played a major role in the FBI’s investigation. Many of the documents the House demanded were, in fact, dossier-related. Not long after Nunes issued his contempt threat, anonymous sources leaked that infamous “origin” story to the New York Times. The piece claimed the entire investigation had been prompted by Papadopoulos and explicitly demoted the dossier’s role. The very next day, the Washington Post ran a separate hit piece on Nunes, claiming, again with anonymous sources, that his Republican colleagues had lost confidence in him. “So a leak about how the dossier doesn’t matter after all, and another saying I’m out there alone,” Nunes recounted to me later. “And right then [Rosenstein] and [Wray] suddenly demand a private meeting with [Speaker Paul Ryan], where they try to convince him to make me stand down. All of this is not a coincidence.” Ryan, to his credit, didn’t fall for the brazen ruse and backed up Nunes’s demands. A few hours later, Nunes was able to announce that the DOJ had agreed to let committee investigators finally see the material they demanded.

  Washington is a dirty place, but this episode was more disturbing than most. The Justice Department and the FBI hold awesome powers. In the days of J. Edgar Hoover, they abused their information-collecting capacities by maintaining files on members of Congress—to keep people in line. While the targeting of Nunes wasn’t quite that slimy, it should worry every American that prosecutors and law enforcement officials are willing to smear elected legislators—just to hide their secrets. The Washington Post and New York Times stories once again sent the message to the federal bureaucracy that leaks and slurs are an acceptable—even routine—part of government business. They are not.

  The months of obstruction also did serious long-term damage to Congress’s oversight authority. Fights over executive privilege are nothing new. Nixon invoked executive privilege to protect himself during Watergate. Clinton invoked it more than a dozen times, in part to bar Ken Starr from questioning some of his aides. George W. Bush invoked it with regard to questions about the firing of U.S. attorneys. Obama invoked it to protect information about his botched Fast & Furious gunrunning operation.

  But nobody in 2017 ever deigned to suggest the DOJ documents in question were subject to executive privilege. Quite the opposite. This was information—as former FBI legal attaché Baker noted in his op-ed—that Congress had been free to view in the past. That’s because those documents fell squarely under congressional oversight, and moreover the sharing between the congressional and the legislative branches of counterintelligence information is important for national security.

  Yet the DOJ’s unprecedented refusal to share exposed just how few powers Congress has to compel a mulish department to comply. Rosenstein and Wray ultimately chose to avoid contempt resolutions—but only after months of delay. And even if Congress had issued those resolutions, the DOJ would likely have refused to act on them, forcing Congress to engage in years of litigation. Future executive branch departments now understand that there are few immediate consequences to balking congressional subpoenas. That will only embolden bureaucrats to overstep, in the knowledge that they have the ability to keep their actions hidden in the longer term.

  * * *

  Nunes and his compatriots were finally off to view key dossier documents. In the same week, Grassley and Lindsey Graham sent to the DOJ a criminal referral against Steele. They’d discovered enough to believe that Steele had lied to the FBI about his interactions with the media. Congressional Democrats went into a panic and again ramped up. They proved willing to wreck more committee reputations and rules in their rush to deflect from what Republicans were finding.

  Feinstein almost immediately took the extraordinar
y step of unilaterally releasing the transcript of Simpson’s Senate Judiciary Committee testimony from the prior August. It was an extraordinary break with procedure and a hard-nosed snub of Grassley, who had worked collegially with her for years.

  The clear intent of the release was to get out ahead of Republican findings and rehabilitate the dossier. Simpson’s transcript presented Steele in a fawning light, a “Boy Scout,” with “quality” intelligence-gathering skills, a man nobly interested in saving the United States from Putin—rather than a gun-for-hire. Feinstein was aided directly in her campaign by Simpson and his co-founder, Peter Fritsch, who in early January ran an op-ed in the New York Times, in which they lauded their own dossier work, claiming their only interest had been to “highlight Mr. Trump’s Russia ties.” Their line: All that mattered were the motives and credentials of Steele, and he was great. They did not include the fact that the noble Steele had blabbed to the press and been dismissed by the FBI. And remember, all this came out at exactly the moment it became clear Nunes would be getting the truth about the degree to which the FBI had used the dossier. Since Ms. Feinstein’s unilateral release, members all over Congress (including Republicans) have felt at liberty to unilaterally release documents. Another line erased. Thank you, Resistance.

  Ms. Feinstein’s behavior was matched only by that of her ranking colleague on the Senate Intelligence Committee, Virginia’s Mark Warner. Having successfully mau-maued Chairman Richard Burr into working “cooperatively” with Democrats, Mr. Warner set about running the show. It would later come out that in March 2017, Warner began secretly texting with a lobbyist who offered to put him in touch with Steele. Warner didn’t tell his committee colleagues about this for months. He instead insisted in his messages that he alone on the committee should talk to Steele first, about the “scope” of any possible testimony. That didn’t come to pass, but why was Warner so worried about what Steele might say?

  Warner’s bigger achievement was to keep the Senate investigation going and going and going—allowing him to continue spinning collusion theories, even as the committee provided no answers. Most of the other committees digging into the Russia question were producing reams of important information. Grassley and Nunes had dug into Fusion, the dossier, Steele, the FISA warrants. Johnson had investigated leaks and pushed the release of vital Strzok-Page text messages. The Burr-Warner investigation? A black hole. As the WSJ wrote in an October 2017 editorial: “As the Republican Chairman of the Senate Intelligence Committee and the Democratic Ranking Member held a press conference Wednesday about their investigation into Russia’s role in the 2016 presidential election, a nearby sign highlighted their effort: 11 open hearings, 100-plus people interviewed, 4,000 transcript pages and 100,000 pages of documents.” Answers: none.

  The embarrassing part was Republican committee members’ willingness to endure this political mugging. Whereas Schiff had destroyed committee comity, Warner successfully used it against his GOP colleagues. “Bipartisanship” in Warner’s dictionary meant that committee Democrats got to make unfounded accusations against Trump and his team, while Republicans were required to sit silently by—lest they be accused of uncongeniality. Warner was helped in this effort by a press corps that continued to gush over just how professionally the committee was working.

  Burr even allowed his fiefdom to be turned into something akin to the terrifying House Un-American Activities Committee, which pursued putative communists. Burr’s committee began sending letters to absolutely everyone about their Russian acquaintances. They sent one to Robert Barnes, an attorney for Charles C. Johnson, a controversial alt-right blogger. The letter demanded he turn over “any communications with Russian persons.” The attorney queried just what this meant. Russians in Russia? Russians in America? Russians who may have engaged in the election? Russians who might be interested in politics? The committee’s response was more chilling than even Barnes might have imagined. It wrote that its letter “may be read to refer to persons that Mr. Johnson knows or has reason to believe that are of Russian nationality or descent” (emphasis added). Consider that phrase, and imagine replacing the words with persons of “Arab or Arab descent.”

  Over in the House, South Carolina’s Trey Gowdy would point out that the Democrats’ desired “witness list” was so expansive that it read like “pretty much every character in any Dostoevsky or Tolstoy novel.” There are at least 130 million Russians on the planet, and only a few dozen had anything to do with the 2016 election. Yet here were senators suggesting that the mere act of knowing someone with a Russian last name was potentially treasonous. Burr’s committee came far closer to breaching that civil liberties line than anything Trump was ever accused of, and nobody in the D.C. press corps cared one bit.

  Yet none of this held a candle to the behavior of California Representative Adam Schiff, who managed in a few short months to destroy the reputation of one of the last grown-up committees in Congress. For decades, the House and Senate Intelligence Committees had held themselves out as a redoubt of reasonableness and bipartisanship. Only serious members tended to ask to serve in these hard posts, and only serious members tended to be named. Committee members prided themselves on putting national security ahead of partisan politics and generally refusing to undercut one another.

  Schiff, the ranking member under Nunes, officially ended all that. When Nunes exposed the information about Obama administration unmaskings, Schiff chose to berate the Republican rather than treat the information seriously. This was startlingly partisan, given that for years Democrats had made an issue about government spying, privacy, and civil liberties. The left had blown a gasket over the Republican authorization of metadata, which merely allows the government to collect telephone numbers—no names, and no eavesdropping. And Oregon Senator Ron Wyden in 2013 had introduced a bill to strengthen the ban on reverse targeting, for fear the government would use surveillance of foreign citizens to listen in on Americans. Yet now with clear proof that the Obama administration had abused its unmasking authority, Schiff moved to shoot the messenger.

  He followed this up with a jaw-dropping performance on March 20, 2017, in which he used a House Intelligence Committee hearing to present the crazy dossier allegations as fact. It was nothing less than shocking to watch one of the higher-ranking members of Congress, sitting on one of the more responsible committees, spew libelous, unverified accusations of treason in a public hearing. Two days later, Schiff would launch a full-blown national hysteria when he claimed on NBC’s Meet the Press Daily that the Intelligence Committee already had “more than circumstantial evidence” that the Trump campaign had colluded with Russia. Washington does not suffer from a lack of irresponsible statements, but Schiff’s were singular.

  An even more dishonorable moment came nearly a year later, in February 2018. The entire House Intelligence Committee had finally been allowed to see pertinent FISA documents, and Nunes now knew for certain that the FBI had used the dossier as a central part of its FISA application against Page, that the FBI hadn’t been straight with the court about Steele and his political masters, and that the FBI had recycled a news story to the court. Republicans put together a “memo” describing these and other alarming findings. This was everything Democrats had feared.

  Their initial response was to fight tooth and nail against its public release. When this looked likely to fail, Schiff instead produced a “rival” memo. His document would later prove to be a bald misrepresentation of the facts. It claimed that “FBI and DOJ officials did not ‘abuse’ the [FISA] process, omit material information, or subvert this vital tool to spy on the Trump campaign.” Untrue. But at the time nobody other than the committee had seen the FISA documents, and the press was happy to run with Schiff’s assessment. The Nunes memo was important and ultimately sparked Sessions to formally ask the DOJ inspector general to conduct an investigation into whether the FBI had abused the FISA process. And when the DOJ that summer finally released redacted versions of the Page FISA applications
, Nunes’s memo was utterly vindicated. But Schiff had managed to once again keep the collusion narrative flowing.

  Schiff would continue this unprofessional behavior—even through the Mueller report. He fought Nunes on releasing a full committee report on findings, he continued to claim he had “evidence” of Trump collusion, and his side of the committee continued to leak information designed to undermine their Republican colleagues. I at one point sent an e-mail to Schiff’s office asking for an on-the-record response to just when, exactly, Schiff first knew about the dossier and the fact that Democrats had paid for it. I never received a response.

  * * *

  Meanwhile, the Justice Department wasn’t yet done trying to hide information. Nunes and others had managed to see the crucial FISA documents and put out their memo. At the end of March 2018, committee Republicans announced they had finished their investigation and had readied a final report on Russia’s interference in 2016, along with recommendations to prevent a repeat. The committee had engaged in an exhaustive probe, one that proved spot on. It managed to conclude a full year before Mueller that there was no Trump-Russia collusion and to spotlight Russia’s damaging efforts in the election.

  The report nonetheless also contained damaging information about the FBI’s actions in 2016, and the DOJ instantly claimed the right to redact it. When the DOJ finally allowed a heavily blacked out report to emerge nearly a month later, Republicans were furious by what the department had hidden. The DOJ has a clear and legitimate interest in redacting information that could hurt national security. But the GOP quickly realized that the DOJ and FBI had also redacted information solely to spare the FBI from embarrassment. Just one example: Footnote 43 of the intelligence report explained that the then–FBI general counsel, Jim Baker, met in the fall of 2016 with a person who had provided information about Trump-Russia links. The person’s name was blacked out. We’d find out much later that it was, of course, the Perkins Coie lawyer who worked for the Clinton campaign: Michael Sussmann. National security concerns? Hardly.