CHAPTER FOURTEEN
Insurance Policy
‘OMG I CANNOT BELIEVE WE ARE SERIOUSLY LOOKING AT THESE ALLEGATIONS AND THE PERVASIVE CONNECTIONS.” Peter Strzok was aghast, and this hysterical text he sent to Lisa Page on August 11, 2016, showed it. Like John Brennan, Victoria Nuland, and Bruce Ohr, they were dumbfounded by Chris Steele’s allegations. And fully inclined to believe them.
And the pressure was on not just to believe them but to do something about them. The 2016 election was just three months away.
There was never a Russia-gate moment when the electoral clock was not ticking, loudly enough to have everyone’s attention. How badly had Clinton been damaged by one investigation, and could Trump be stopped by the other? That was implicitly clear on July 5, when Director Comey publicly exonerated Hillary Clinton in Washington while, on the same day in London, Agent Michael Gaeta conducted the FBI’s first Russia-gate interview of Steele. It had been explicitly clear two months earlier, on May 4, when Page alerted Strzok that Senator Ted Cruz had just dropped out of the Republican primary race, ensuring that Donald Trump would be the nominee. After digitally blurting out “What?!?!??[,]” Strzok’s very first reaction was: “Now the pressure really starts to finish MYE”—Mid Year Exam … the Clinton emails investigation.
The political calendar always hovered, and the cases were always two sides of the same coin—which came up Clinton every time.
In hindsight, from the Trump perspective at least, the fact that Clinton was going to be elected president—and it was a fact as far as the investigators were concerned—had a salutary effect on the FBI. The Bureau did not want to be thrust into the politics of the 2016 election. Don’t confound any objections to the way the FBI handled things with an FBI desire to handle things. Out of 330 million Americans, the public narrowed the contest for the nation’s highest office to two extraordinarily flawed candidates. That was not the Bureau’s call. To be sure, it certainly seems that whenever there was a choice to be made between quietly going about its business or thrusting itself into the limelight, Jim Comey’s FBI jumped out front. Still, this was not prearranged: with Clinton in particular, a no-win investigation was the hand that was dealt, and the FBI had to play it. As for Trump, while it is manifest that headquarters believed him unfit for office, this did not mean—as the caricature has it—that FBI officials were Hillary devotees, except in the default sense that an election is a binary choice and somebody has to win.1
Undeniably, there was bias against Trump. Just three days before Strzok’s “OMG” outburst about the supposedly “pervasive connections” between Trump and the Kremlin, Page was the hysterical one:
“He’s not ever going to become president, right? Right?!”
“No. No he won’t,” Strzok replied. “We’ll stop it.”
It cannot have been lost on these experienced investigators how paltry was the evidence against Trump. But they were out of practice: the criminal case against Clinton was not going to be charged no matter how much evidence there was; and the Trump probe was shoved into the shadows of counterintelligence, where corners are cut because everyone knows there will be no adversarial court proceedings. That made it easy to believe Chris Steele, a well-regarded, heart-in-the-right-place former colleague, who saw Trump as they saw Trump. Who needs more corroboration than that? That is what Comey told the Senate Judiciary Committee when pressed on this point:
When asked at the March 2017 briefing why the FBI relied on the dossier in FISA applications absent meaningful corroboration—and in light of the highly political motives surrounding its creation—then-Director Comey stated that the FBI included the dossier allegations about Carter Page in the FISA applications because Mr. Steele himself was considered reliable due to his past work.2
They believed Steele, so they believed the Russians had finally reeled in Carter Page after years of trying. They believed Alexander Downer’s subjective impressions of what George Papadopoulos’s barroom comments “suggested.” It sounded consistent with Steele’s claims, so who cared that Downer’s suggestion did not accurately reflect what Papadopoulos had actually said, or that Steele’s claims couldn’t be proved? Everything was classified, the Gang of Eight was not going to be told about any Trump investigation until after the election—which Clinton was going to win anyway.
People do not think this way when they know they have to be able to prove things to a jury. When I was a prosecutor, I believed a lot of bad things that investigators and sources I trusted told me. But professionally, you never, ever forget that there are legal burdens of proof and rules of admissible evidence. You get judged by whether you’ve met them. And if for some reason you do forget, your headquarters is there to remind you.
Unless, of course, you are headquarters and there is no backstop to save you from what happens to all institutions, no matter how venerable, when there are no rules and no supervision.
The unabashed blatancy of the bias against Trump is why I believe the Justice Department Inspector General was wrong to conclude that this bias could not be deemed causative of any particular investigative decision in the Clinton emails case.3 Still, the practical effects of FBI bias against Trump were more in evidence after the election than before. Everyone was extremely confident that Mrs. Clinton would win, so before November 8, they exhibited a circumspection that disappeared afterwards.
Public Criminal Investigation v. Classified Counterintelligence Probe
It is this conceit that Clinton was a shoo-in, and not anti-Clinton bias, that explains why the FBI was appropriately mum regarding the Trump probe, despite being very public in its many of its Clinton probe actions. Democrats and their media allies ceaselessly snark about this disparity, and the complaint has a surface appeal.4 But, as the sage maxim teaches, there is real iniquity in treating fundamentally different things as if they were the same.
The Trump and Clinton investigations were fundamentally different. The former was counterintelligence, which is classified. Silence is required not only for national security reasons but because counterintelligence probes are not premised on proving violations of the criminal law. The mandate that criminal violations be proved in open court, where the accused has a right to mount a defense, is the main reason why criminal investigations become public. Pre-election, no prosecutor or investigator ever had the nerve to claim, formally, that Trump had violated the criminal law—notwithstanding the Obama administration’s fever dreams about a grand Trump–Putin conspiracy.
In stark contrast, the Clinton probe was a criminal investigation. Most criminal investigations are eventually publicized, and some are unavoidably public because of the nature of the suspected criminal activity, or because of the suspect’s public position, or both. Here, Clinton was a former secretary of state who had flouted her public trust—her legal obligations to maintain government records and safeguard classified information. It was inevitable that her misconduct would become public, because its objective was to defeat transparency laws. That can’t stay secret forever. The State Department grapples constantly with a flood of Freedom of Information Act disclosure demands (from the media and indefatigable outfits like Judicial Watch). When public controversies involving international affairs occur, such as the Obama administration’s handling of Benghazi massacre, there are certain to be years of congressional hearings and court proceedings that pose document demands. Clinton’s malfeasance was revealed in a referral to the Justice Department by the intelligence community’s inspector general. This was well known when the FBI caught the case. While classified information was pertinent to the Clinton caper, the investigation itself was not classified.
The effort to draw equivalence between the two investigations, demonstrable in Senator Harry Reid’s August 27 letter pressuring Comey to investigate Trump in the campaign stretch run, is ill-conceived. To be sure, most of the Democrats’ ire stems from the Director Comey’s decisions to go public with the evidence against Secretary Clinton and to notify Congress, just day
s before the election, that the investigation against her was still pending. These were, indeed, inappropriate actions because Clinton was not charged with a crime. Of course, to stress this is to glide past the inconvenient fact that most Americans who tried what Clinton pulled would have been indicted. But even if we ignore that little detail, it remains true that the FBI is simply not in the cosmic justice business. It is in the rule-of-law business. Mistakes happen in all human endeavor, but in law enforcement, we are always obliged to follow regulations, not emotions. We do not rationalize that because Mistake A has been made, fairness dictates that Mistake B must follow. The improper leaking of non-public law-enforcement information (the evidence against Clinton) was never a legitimate basis to demand what would have been the criminal leaking of classified information (the existence of and intelligence related to a counterintelligence investigation against Trump).
Now let’s move from airy principle to real-world facts. The Trump–Russia investigation was leaked. As we’ll see in more detail shortly, the Clinton campaign not only choreographed the investigation (and not just through Fusion GPS); it also attempted to exploit the existence of the investigation in the campaign’s final weeks. CIA Director Brennan armed influential congressional Democrats with Trump–Russia intelligence, and they proceeded to make public statements. Jennifer Palmieri and Jake Sullivan, respectively Clinton’s chief spokesperson and national security advisor, aggressively directed the media’s attention to the collusion story. Many media outlets picked it up. When news broke of the Alfa Bank allegation—the claim that Trump and Putin had a back-channel for private email (see Chapter 8)—Sullivan was quick to issue a statement: “This could be the most direct link yet between Donald Trump and Moscow.… This secret hotline may be the key to unlocking the mystery of Trump’s ties to Russia.”5
What gnaws at Camp Clinton is that the FBI did not join the public spectacle. Under the radar, the Bureau may have been taking aggressive investigative measures that were unjustifiable under the circumstances (deploying informants, applying for FISA warrants), but it respected the laws and procedures that make counterintelligence probes secret. This was not because FBI officials were just better people than everyone else. As we’ll see, after Trump’s election, discretion largely went out the window. Before the election, though, practical considerations drove FBI decision-making. Mrs. Clinton was the heavy favorite. The FBI is not supposed to factor political calculations into investigative judgments, but it did. Comey was candid on that point in trying to explain his controversial October 28 letter informing Congress that the emails case was still under review—the letter over which the inspector general rightly censured Comey, and which Mrs. Clinton blames for her defeat (when she is not blaming Putin, collusion, the DNC emails, deplorable Trump voters, the Electoral College, Fox News, climate change, the Lindbergh kidnapping, and anything imaginable besides a lackluster campaign in which she got outworked).6
Once again illustrating the inextricable interrelatedness of the Clinton and Trump probes, October 28 is the same day “intelligence officials” leaked to the Times that the Bureau, after extensive investigation, had not found any actionable ties between the Trump campaign and the Kremlin. None of this Machiavellian narrative-shaping is ever a good idea, but the FBI’s point was not to lift Trump and sink Clinton. The objective was to give Clinton a clean slate: When she was inevitably elected, nobody would be able to say that the Bureau had sat on damning evidence against her, and there would be no Trump–Russia contrails. President Hillary Clinton would be able to begin her administration with the upbeat message that the voters had rendered their judgment fully aware of all relevant information, and therefore it was time to turn the page and govern—not spend two years with her subordinates lawyering up while her political opponents pined for a special counsel.
It was a sensible strategy, but sensible strategies don’t always work. The problem with playing this game of crafting narratives instead of just following rules is that there are no sure things. Games are made to be lost.
Pre-election, Brennan had to pressure Comey because the Bureau, already charred by the Clinton emails debacle, did not want to be perceived as overly anxious to jump into a campaign-season probe of Trump. But Democrats were agitating, and a Trump win, while highly unlikely, was not so impossible that it could be dismissed out of hand. At every turn, the FBI, and the Obama administration broadly, had to weigh (a) the ability to hurt Trump by openly exercising their awesome powers, against (b) the implausibility of his election. Clinton was going to win, but she was unpopular and might not pull away. The polls might tighten. There was always the possibility that overt investigative activity, especially in the absence of solid evidence, would outrage enough of the public that Trump’s chances could actually improve. When you ignore the little angel on your shoulders whispering, “Just follow the rules and don’t try to predict the politics,” the world gets very complicated.
Hope for the Best, Prepare for the Worst
On August 15, a number of FBI officials including Strzok and Page gathered in Deputy Director McCabe’s office. We do not know everything that was said and planned at that meeting. We do know, however, that Page counseled caution. As she and Strzok recounted the meeting while texting the next day, Page had opined, “There’s no way he gets elected.” Strzok, however, believed that even if a Trump victory was the longest of long shots, the FBI could not “take that risk.” He insisted that the Bureau had no choice but to proceed with a plan to contain the damage that would be wrought by a Trump presidency: “It’s like an insurance policy in the unlikely event you die before you’re 40.”
This is such a damning comment—a shocking one for those of us who revere the FBI—that, naturally, there have been attempts to explain it away, some of which would be hilarious but for the situation’s gravity. Strzok and his apologists, for example, have offered the straw man that the agent “didn’t intend to suggest a secret plan to harm the candidate”—as if any responsible person ever suggested that the FBI was plotting Trump’s assassination.7
Motivated by blatant anti-Trump animus (and outrage at Russia that was outsized given how historically routine and practically inconsequential its campaign meddling was), solid investigators got swept into the herd mentality. They credited shoddy information, rather than attempting to verify it as their duty demanded. They would have been delighted to derail Trump’s candidacy if they could, but it is not the objective of an insurance policy to prevent a disaster. Insurance is a hedge against the fallout of a disaster. That’s a big reason why, even though espionage and hacking conspiracies are very serious crimes if proved, the Trump probe was designated as counterintelligence, not criminal. The idea was not to arrest Trump. It was to keep him under monitoring. It was to limit the damage he would be able to do, if elected president, in the event he really was a Kremlin plant. If he was not elected, the matter could be dropped and no one would be any the wiser. If he won, investigators could paralyze him—the threat of an obstruction allegation would hem him in—while they looked for provable misconduct that could predicate a prosecution, trigger his impeachment, or at the very least render him too damaged politically to be reelected.
The main thrust of the insurance policy would be the Steele dossier. As we’ve seen, informants were deployed to attempt to obtain incriminating evidence. Papadopoulos, in particular, was pressed to admit that the campaign was collaborating with Russia in the hacking and dissemination of emails. There, as we’ve seen, the FBI even slipped “Azra Turk” into the equation so, on the off chance that Papadopoulos confessed, there would be a government operative available to testify while Stefan Halper quietly disappeared into the top-secret mist. (By the way, anybody want to bet against me that there are tapes we haven’t yet heard?) Most of the premiums, though, were paid toward the dossier. It was the long-term plan.
By mid-August, Steele had reported that Putin was directing the hacking plot on Trump’s behalf. Carter Page, said to be supervised by
Manafort, had supposedly met with Putin’s operatives while in Moscow, discussing not only Clinton kompromat but a corrupt quid pro quo on Russia sanctions that Steele eventually inflated into a bribe scheme potentially involving tens of millions of dollars. Trump lawyer Michael Cohen was purportedly in eastern Europe (Steele eventually settled on Prague as the site), meeting with Kremlin agents and paying off the hackers (for DNC emails that, even Steele, speaking through his regime sources in a later report, had to concede had no real impact on Clinton).
In Trumpian excess, the GOP nominee asserted at a July 27 press conference, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.”8
I confess to being amused by it at the time, the sort of thing that you know shouldn’t make you snicker, but does—just as Democrats would feel about some partly jocular, mostly savage remark by, say, Joe Biden or James Carville. The contention, made by Democrats ever since, that Trump was calling on Russia to hack Clinton is so overwrought one doesn’t know where to begin. The theory of the Trump–Russia conspiracy was that Trump took the orders from Putin; he didn’t give them. Trump had clearly been referring to the State Department emails improperly stored on Clinton’s private server and destroyed at Clinton’s direction, not the DNC emails the Kremlin had caused to be hacked. And as everyone believed at the time, Clinton’s servers and all devices known to contain copies of her existing emails were in the off-line possession of the FBI—Russia may have hacked Clinton’s emails long ago, but those emails were no longer available to be hacked.
Palpably, Trump did not and could not direct a Russian hacking. This was an attention-grabbing gambit, in the stretch-run of the contest and in Trump’s outrageous style, to call voters’ attention to one of his rival’s greatest vulnerabilities: the lawlessness and national-security recklessness of her private server system and destruction of government records.9
Ball of Collusion Page 31