Was Comey Too Tardy to Investigate the Russian Plot?

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Moscow’s Red Square and Saint Basil's Cathedral are illuminated ahead of celebrations to mark the 70th anniversary of the end of World War II, on May 6, 2015. Ryan Goodman and Richard Painter write that there is now an urgent need for independent investigations—including a special prosecutor and the Justice Department’s inspector general—to look into the underlying evidence that the FBI had of Russian connections to Americans before the election. The FBI may be accused of failing to sufficiently pursue a pre-election investigation of these connections, which would have put the country at great risk, Goodman and Painter write. Sean Gallup/Getty

This article first appeared on the Just Security site.

On Sunday, in a follow-up to President Donald Trump’s controversial tweets, the White House called for Congress to look into how the FBI investigated Russian connections to the Trump campaign before the election.

We find ourselves in the position of welcoming this call. There is now an urgent need for independent investigations—including a special prosecutor and the Justice Department’s inspector general—to look into the underlying evidence that the FBI had of Russian connections to Americans prior to the election.

And, as we lay out in great detail here, the FBI may be accused of failing to sufficiently pursue an investigation of these connections before the election. A failure on that level would have put the country at great risk, and political leaders now have reason to support full-blown and independent investigations.

Only such independent investigations can now resolve Trump’s concerns and these directly related issues.

In mid-January, the Justice Department’s inspector general (IG) announced that he would open a review of actions by the Department of Justice and the FBI in the investigation of Hillary Clinton’s emails. The actions under review include FBI Director James Comey’s letter to Congress in the days just before the election, which violated DOJ policies and procedures and probably also violated the Hatch Act, which prohibits official capacity action intended to influence the outcome of a partisan election.

The IG’s announcement came after allegations that ideological and political bias influenced FBI officials, especially in the bureau’s New York office, which reportedly leaked information (or rather, spread misinformation) about the Clinton investigation days before the election. Congressional committees are also now looking into related matters.

Given what we now know, there is a need for independent investigations of the concerns that the White House raises and also to know whether the FBI failed to properly pursue Russia’s intrusion into the Democratic National Committee’s (DNC) computer systems and reported contacts between Trump campaign associates and Russian agents and their intermediaries. FBI mishandling of the Russia file is of paramount importance, as it raises acute concerns about our national security and the sanctity of our election process.

Related: Russian plot: White House denials fail to convince

I. Developments in early 2017

What do we know now that we didn’t when the IG opened his review and congressional inquiries began? In other words, what gives us reason now to support independent investigations of the FBI’s action and inaction prior to the election?

Less than 48 hours before the IG’s announcement, CNN published a story saying the intelligence community had decided to brief the president and president-elect about the dossier compiled by former MI-6 agent Christopher Steele. The dossier had some flaws, but the author had a solid reputation in the intelligence community.

One U.S. official told The Guardian that Steele was (as paraphrased by the newspaper) “consistently reliable, meticulous and well informed, with extensive Russian contacts.” The New York Times reported that “by all accounts, Mr. Steele has an excellent reputation with American and British intelligence colleagues and had done work for the F.B.I.” Steele’s standing was reportedly a factor in the decision to include the dossier in the briefing.

Since then, information has surfaced to corroborate elements of the Steele dossier. One of its most explosive claims involved links between Russia and Trump campaign affiliates during the time the Kremlin was running its cyberoperation to undermine the election.

Earlier this month The Washington Post, relying on nine current and former intelligence officials, reported that an ongoing investigation of former national security adviser Michael Flynn revealed that he had conversations with the Russian ambassador to the United States before the election. Soon afterward, the Times reported, and CNN and Reuters confirmed with their own U.S. intelligence sources, that multiple Trump associates had repeated contacts with Russian agents during the campaign.

Also in February, CNN reported that for the first time, U.S. investigators said they had corroborated some of the specific conversations between Russian nationals that were identified in the Steele dossier.

II. Pre-election FBI actions

So why did all this information emerge only now, and why did it take so long to begin to corroborate some of Steele’s information? We may never know, but there are many serious questions raised about the way the FBI handled this case that demand an inquiry.

The Russian hack of the DNC

Serious allegations have been raised that the FBI, especially including its New York office, failed to address properly the Russian hack of the DNC, which led, in due course, to Russian cyberintrusions into other systems of Clinton campaign associates.

In December 2016, Clinton campaign chairman John Podesta expressed serious concerns about the slowness of the FBI, including agents in the New York office, to alert the DNC that it had been compromised. Very similar concerns were voiced by Shawn Henry, a former FBI official who once led the bureau’s cyberdivision and now heads CrowdStrike, the cybersecurity company that was retained by the DNC to investigate the hack.

In December 2016, the Times reported:

The low-key approach of the F.B.I. meant that Russian hackers could roam freely through the committee’s network for nearly seven months before top D.N.C. officials were alerted to the attack and hired cyberexperts to protect their systems. In the meantime, the hackers moved on to targets outside the D.N.C., including Mrs. Clinton’s campaign chairman, John D. Podesta, whose private email account was hacked months later.

These issues leave a cloud over the FBI. At a cybersecurity conference earlier this month, both Podesta and Henry restated their concerns about the FBI’s handling of the situation.

“Obviously, the DNC should have been at the top of the list in terms of prioritization. The agents engaged there didn’t seem to recognize it for what it was,” Henry said. “There has to be a sense of urgency. If you don’t see an attack on the election system as a threat to our national security…then you’re in the wrong country.”

Russian connections to the Trump campaign

At least as far back as April 2016, CIA Director John Brennan was reportedly provided “a tape recording of a conversation about money from the Kremlin going into the U.S. presidential campaign,” which had been passed on by an intelligence agency from a Baltic state. Without the CIA having jurisdiction to operate domestically, a joint task force was formed to investigate.

The domestic wing of the task force included the Justice Department, FBI and Treasury Department. By June, the FBI reportedly went to a federal court to obtain authority to “to monitor four members of the Trump team suspected of irregular contacts with Russian officials.”

The task force had presumably satisfied itself that it had probable cause to target members of Trump’s team. The court, however, rejected the application as too broad.

The FBI tried again in July, but the court also rejected that attempt. The FBI would succeed on a third try months later with the court granting a warrant or order in October 15, a few weeks before the election.

According to the BBC, “Neither Mr. Trump nor his associates are named in the [court] order,” but according to a lawyer familiar with the case, “three of Mr. Trump’s associates were the subject of the inquiry. ‘But it’s clear this is about Trump,’ he said.”

In the meantime, Steele submitted his first tranche of information to the FBI in July. He thought the immediate reaction was “shock and horror.”

According to intelligence sources, however, Steele soon grew deeply suspicious that the FBI was “failing to take action on the intelligence from others as well as him. He came to believe there was a cover-up, that a cabal within the bureau blocked a thorough inquiry into Mr. Trump, focusing instead on the investigation into Hillary Clinton’s emails.”

Steele’s colleague in Washington, Glenn Simpson, a former Wall Street Journal reporter and head of the company Fusion GPS, reportedly held the same view. When Steele returned to the FBI with more material in September, “there seemed to be little progress in a proper inquiry into Mr. Trump. The bureau, instead, seemed to be devoting their resources in the pursuit of Hillary Clinton’s email transgressions.”

David Corn, the D.C. bureau chief of Mother Jones, was the first to write about the Steele dossier in October. Notably, Corn thought the story was about the FBI’s actions. Corn explained:

The newsworthy story at this point was that a credible intelligence official had provided information to the FBI alleging Moscow had tried to cultivate and compromise a presidential candidate. And the issue at hand—at a time when the FBI was publicly disclosing information about its investigation of Hillary Clinton’s handling of her email at the State Department—was whether the FBI had thoroughly investigated these allegations related to Russia and Trump.

Senator Harry Reid also grew frustrated with the FBI. He sent a letter to Comey on August 27, 2016, stating that

the evidence of a direct connection between the Russian government and Donald Trump’s presidential campaign continues to mount…and it is critical for the Federal Bureau of Investigation to use every resource available to investigate this matter thoroughly and in a timely fashion. The American people deserve to have a full understanding of the facts from a completed investigation before they vote this November.

The Justice Department and FBI may have decided to do the opposite of what Reid wanted: wait out the clock. A passage in a Reuters story on November 3, 2016, now seems even more significant in retrospect:

The FBI has made preliminary inquiries into Clinton Foundation activities and alleged contacts between Trump and associates with parties in Russia, according to law enforcement sources. But these inquiries were shifted into low gear weeks ago because the FBI wanted to avoid any impact on the election.

That statement by Reuters is also consistent with a New York Times report that the Justice Department and FBI very deliberately decided to put on a “low simmer” both the inquiry into the Clinton Foundation and specifically an investigation into Paul Manafort’s financial dealings with Ukraine.

But even that choice—equating the Manafort financial dealings with Ukraine and the Clinton Foundation allegations—is dubious. Manafort, at one point Trump’s campaign manager, was already under criminal investigation. As an indication of the seriousness of the charges, he abruptly resigned from the campaign four days after the Times ran a story about seemingly illicit business dealings with Ukraine.

The allegations about the Clinton Foundation, in contrast, were on the other end of the spectrum. According to the Times (and The Wall Street Journal), FBI agents in the New York office asked to open an investigation “based mostly” on information in news stories and in Clinton Cash, a book that was heavily promoted by Breitbart News.

Their proposal did not pass muster. As The Washington Post noted, the fact “that public integrity section prosecutors—who are not politically appointed—felt FBI investigators did not have a case is a strong defense for Clinton.” The Journal also reported that “senior officials in the Justice Department and the FBI didn’t think much of the evidence” and sent a message to all the offices to “stand down.”

The contrast between these cases is stark: Investigations of the Trump team’s suspected links to Russia—which could involve a severe national security threat and potentially a direct impact on the election—were deliberately slowed down until after November 8 out of concern that pursuing them might influence voters. Yet Comey took the extraordinary step of sending his letter on October 28 to Congress (before even seeking a warrant).

In his message to staff that day, Comey said, “I also think it would be misleading to the American people were we not to supplement the record.” (Comey’s decision to lead the American people with this information right before the election is why the U.S. Office of Special Counsel is presumably now looking into whether he violated the Hatch Act.)

Why did Comey take those steps? One explanation is that he bowed to the pressure coming from Republican members of the congressional committee. Trump loyalist Rudy Giuliani said Comey’s action resulted from “the pressure of a group of FBI agents who don’t look at it politically…. There’s a kind of revolution going on inside the FBI about the original conclusion [not to charge Clinton] being completely unjustified and almost a slap in the face to the FBI’s integrity.”

As an aside: Giuliani boasted about his conversations with current FBI agents, presumably including the New York office, and he made a statement two days before the Comey letter, which many think indicates Giuliani had known about it in advance.

Following an intelligence briefing of the Gang of Eight and probably sparked by Comey’s action, Reid penned another letter to the FBI director on October 30, stating that “it has become clear that you possess explosive information about close ties and coordination between Donald Trump, his top advisers and the Russian government” and calling for the director to inform the public.

FBI agents did not let Reid’s letter sit. On the evening of October 31, the Times published a story, relying on anonymous FBI officials, with the headline “Investigating Donald Trump, F.B.I. Sees No Clear Link to Russia.” It is worth focusing on the key paragraph in the story:

Law enforcement officials say that none of the investigations so far have found any conclusive or direct link between Mr. Trump and the Russian government. And even the hacking into Democratic emails, F.B.I. and intelligence officials now believe, was aimed at disrupting the presidential election rather than electing Mr. Trump.

The qualifications in the first sentence—that the FBI had found no “conclusive or direct” link—are all important. A reader who failed to focus on the precise meaning of those terms could mistakenly think the FBI found no links—and, indeed, the first version of the story that the Times published did not even include those three words. The qualifications were added later.

What’s more, the sentence concerns only direct links to Trump himself. We now know the FBI had petitioned the federal court three times to conduct surveillance or otherwise look into the activities of Trump’s associates, and the court had granted that authority in mid-October.

What’s more, look back at the second sentence in the paragraph. We now know the intelligence community reached the conclusion that Moscow’s cyberoperation was, indeed, motivated to elect Trump.

Also, on November 2 Fox News reported that anonymous sources with “intimate knowledge” of the FBI’s Clinton Foundation “investigation” said that it was “far more expansive than anybody has reported” and that an indictment was “likely.” (Fox later retracted the story.)

What could have motivated FBI agents to tell these tales? A few days later, The Guardian wrote:

Deep antipathy to Hillary Clinton exists within the FBI, multiple bureau sources have told the Guardian, spurring a rapid series of leaks damaging to her campaign just days before the election.

All that said, some information points in the other direction and helps justify the FBI actions. For example, the fact that the FBI returned to the federal court repeatedly to obtain a court order or warrant, at first identifying Trump associates by name as the target, suggests a commitment to the investigation.

Also the FBI special agent covering the DNC hack may have had cause not to show up in person or email anyone at the DNC—reportedly he refrained for fear of alerting the hackers that the FBI knew they were in the system.

The point here is not to determine whether the FBI engaged in wrongdoing, or to say whether specific individuals were motivated by ideology or by misplaced concerns about upsetting the electorate. One strong possibility, for example, is that different actors within the FBI may have had different motivations in these investigations, many of them unbiased and professional but perhaps some of them not.

The important point is that there is enough information in the record for a special prosecutor, Congress and the IG to investigate and make their own assessments. If there was no wrongdoing, these investigations can help clear the record and restore public trust in Comey and the bureau.

These investigations should also get at the underlying question of what evidence exists of Russian contacts and collaboration with Americans during the election—what information motivated the FBI to act or not act to protect our national security.

We, accordingly, agree with the White House that the investigations should cover whether there is a basis for Trump’s claim that the FBI or others in the Obama administration unlawfully wiretapped phones and, if there was surveillance of Trump with a warrant, what evidence supported that warrant.

Ryan Goodman is co-editor-in-chief of Just Security and the Anne and Joel Ehrenkranz professor of law at the New York University School of Law. He served as special counsel to the general counsel of the Department of Defense in 2015-16.

Richard Painter is the S. Walter Richey professor of corporate law at the University of Minnesota Law School.