And before you throw this book at me, I didn’t say political or diplomatic lies are admirable. I said they’re not prosecutable—and we don’t want the Justice Department monitoring our politics or diplomacy.
The investigation of Flynn was baseless. So much so that Obama officials could not provide Congress with a coherent rationale for why FBI agents were dispatched to interview him as if he were a criminal suspect. When the House Intelligence Committee Report’s redactions were revealed, we finally got to see this portion that the Justice Department had concealed (“EN” refers to endnotes):
The Committee received conflicting testimony from Deputy Attorney General (DAG) Yates, Director Comey, Principal Deputy Assistant Attorney General [Mary] McCord, and Deputy Director McCabe about whether the primary purpose of the interview was investigating potentially misleading statements to the Vice President, which the Vice President echoed publicly[,] about the content of those calls [EN 94, citing Yates]; a possible violation of the Logan Act [EN 95, citing Yates]; or a desire to obtain more information as part of the counterintelligence investigation into General Flynn. [EN 96, citing McCabe, who did not recall that Comey had authorized closing the counterintelligence investigation a month earlier.]
Not only was there no good legal reason to interview Flynn. There was no good factual reason. The Justice Department and the FBI already had a recording of the Flynn–Kislyak conversation. They knew what had been said—that’s why an intelligence official was able to leak to the Times that there had been no corrupt quid pro quo. Nor was Flynn needed to interpret the call. When agents want a witness to explain unclear or coded parts of a recorded conversation, they play it for the witness and then ask, “What did this mean? What did that mean?” That’s not what happened in Flynn’s interview. Without the recording being played for him, he was instead asked to narrate from unaided memory what had been said four weeks earlier—an eternity for a busy official engaged in hundreds of conversations. This kind of interrogation makes sense only if the agents are hoping to nail the interrogee by finding inconsistencies. It’s called a perjury trap.16
This is why lawyers do not let their clients sit for interviews by investigators until they have had an opportunity to review the relevant material and prepare the clients for questioning. But Flynn did not have a lawyer. The president’s national security advisor was quite intentionally braced at the White House by the FBI. Former Director Comey has been glibly brazen about it.
It was January 24, Flynn’s second full day as national security adviser to a president with no national security experience. He was crazed. Yet, pursuant to an instruction by Director Comey, Deputy Director McCabe called Flynn to say two agents—Peter Strzok and Joe Pientka—would be coming by to see him. He was discouraged from seeking counsel. As the FBI well knew, an interview of a member of the president’s staff is supposed to be sought by the Attorney General through the White House Counsel. That way, there’s nothing sneaky: the White House Counsel has an opportunity to be present, and the official sought for an interview can be advised—including advised whether he should have counsel.
Asked in a book tour interview how the agents managed to get into the White House and grill Flynn, Comey quipped, “I sent them.” His left-leaning New York City audience loved it. He continued, weirdly bragging that this was something “I probably wouldn’t have done or maybe gotten away with in … a more organized administration.” Normally, he said, there is a “process,” so that
if the FBI wanted to send agents into the White House itself to interview a senior official, you would work through the White House counsel and there would be discussions and approvals and it would be there. I thought, “It’s early enough, let’s just send a couple of guys over.”17
What is it President Obama likes to say? Oh yeah, “Everything by the book.”
Flynn, to repeat, was eventually charged by the Special Counsel with lying to the agents—months after the FBI had reportedly closed the case upon concluding that he hadn’t lied: there had just been innocent failures of recollection.18 House Intelligence Committee Republicans contended that Comey himself had indicated Flynn did not lie. In media interviews, the former director expressed bewilderment over this. In one, Comey told ABC host and Clinton pal George Stephanopoulos: “I don’t know where that’s coming from.… That—unless I’m—I said something that people misunderstood, I don’t remember even intending to say that. So, my recollection is I never said that to anybody.”
Yet, when the Justice Department was pressured to reveal passages that had been redacted from the Intelligence Committee’s report, there was this testimony from Comey: “[T]he agents … discerned no physical indications of deception. They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.”19
Of course, it is always possible that there is some undisclosed testimony that would put this apparent contradiction in a more favorable light. It is worth noting, though, that as long as Comey was the FBI director, Flynn was never charged with lying or any other crime. And, if anything, the snippets of McCabe’s testimony thus far disclosed are even more favorable to Flynn:
[The] conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that [Flynn] made in the interview … the statements were inconsistent with our understanding of the conversation he had actually had with the [Russian] ambassador.
McCabe added: “The two people who interviewed [Flynn] didn’t think he was lying, [which] was not [a] great beginning of a false statement case.”
Only when Robert Mueller and his very aggressive team of prosecutors took over the case was Flynn charged with lying. Flynn’s apologists argue that he was railroaded. Yet, he pled guilty, voluntarily admitting he had lied. When his defenders insisted that he had done this under pressure—broken financially by legal fees, distraught that prosecutors might turn their sights on his son—the judge in his case offered him the opportunity to withdraw his guilty plea and argue that his rights had been violated. He declined, reaffirming that he had misled his interrogators.
For that, Flynn has no one to blame but himself. He should never, however, have been put in that position. What the FBI and the Justice Department did to Flynn, what the Obama administration did to Flynn, was not illegal. But like most everything else in Russia-gate, it was not right.
CHAPTER EIGHTEEN
Nine Days in May
The insurance policy was transferred to a new carrier—Special Counsel Robert Mueller—in May 2017, over the course of nine dizzying days that had the nation reeling. It was on March 20, though, that the tectonic plates shifted.
March 20, 2017, was the beginning of the end of Russia-gate. Not of the investigation. President Trump would remain under a cloud of suspicion for two more years. In fact, it would become more clear than ever that he was the target of a criminal investigation. The media–Democrat zeal to remove him from office would become unbridled. Trump–Russia, though, would be over. It would no longer be a collusion case. It would be an obstruction case. And perforce, that would make it an impeachment case.
It was FBI Director James Comey’s overreach on March 20 that set the chain of events in motion. To understand why, we have to retrace some steps.
Unmasking and Leaking
On January 6, after meeting with President Obama and his administration’s national security team the preceding day, Director Comey briefed President-elect Trump on the salacious sliver of the Steele dossier. Trump was not told that the dossier was a Clinton campaign opposition research project. He was not told that Christopher Steele was a rabid anti-Trumper. He was not told about the ongoing FISA surveillance, based on the FBI’s representation to the FISC that Trump’s campaign may have been complicit in Russia’s cyberespionage plot to influence the 2016 campaign.
The briefing was leaked to CNN, which led to the publication of the dossier and
a torrent of media coverage portraying a Trump–Russia conspiracy.
The dam had burst; the flood was on. But the pressure had been building for weeks after Trump won the election. There had been a steady stream of classified leaks. It emerged that top administration officials—including CIA Director John Brennan, National Security Advisor Susan Rice, and, most oddly, Samantha Power, Obama’s ambassador to the U.N.—had caused a surge in the “unmasking” of American citizens in U.S. intelligence reporting.
Ordinarily, unmasking is a rare phenomenon in foreign intelligence collection. As we’ve seen, our main intelligence agencies—the FBI, CIA and NSA—gather immense streams of information about foreign actors through various programs, such as Rule 702 collection. These collection efforts incidentally sweep up communications by and about Americans. Under minimization procedures required by law, the identities of the Americans are “masked”—concealed in the refined in-telligence reports generated from the raw information collected. But if there is a valid foreign intelligence purpose—i.e., if a high-ranking government official claims an American’s identity must be revealed in order for the national security significance of the information to be understood—then the that official may ask for the American’s identity to be disclosed, i.e., unmasked.
As you can see, the technical legal threshold for unmasking is low. Whether that means, as a practical matter, that masking is illusory as a due process protection for Americans depends on how the minimization rules are respected and enforced. It depends on whether intelligence community leaders breed a culture of constitutional fidelity or political expedience.
Director Comey told Congress that the FBI is “obsessive” about concealing the identities of Americans.1 That is why unmasking is a big deal. When an American is intercepted, the collecting agencies (FBI, CIA, and NSA) don’t shrug their shoulders and say, “Well, we could provide a marginally better understanding of the meaning of this communication if we revealed the name of the American.” Their practice, we’re to understand, is more along the lines of: “We don’t reveal the names unless it is absolutely necessary to understanding a communication of real significance, and even then, we prefer to use some substitute (e.g. ‘American Diplomat No. 1’) rather than the actual name.” The agencies take this position not because they are good, honorable people (though most of them are). They take it because it is in their interest. If they fail to protect the identities and privacy of Americans, and the inevitable scandal arises, an irate public will demand that Congress curtail their spying powers. Without these powers, national security cannot be protected adequately. Disasters will happen, and the agencies will be blamed for failing to stop them.
To be sure, there is a great deal of room for abuse. There can be reverse targeting: foreigners surveilled not because they are of particular intelligence interest but because they interact with Americans; due to the monitoring of the foreigners, the Americans are “incidentally” shadowed. National security officials can claim a foreign-intelligence reason to unmask when, in fact, their real purpose is political.
There is reason to be suspicious about political motivation when unmasking is sought by either intelligence officials who are notoriously political (e.g., Brennan) or White House officials whose roles as political advisors bleed into their national security portfolios (e.g., Rice). After all, the three main collecting agencies—again, the NSA, CIA, and FBI—are the intelligence entities that do the actual investigations. Presumably, if there is legitimate unmasking to be done, those three agencies are in the best position to make that judgment (and, as Comey explained, they lean heavily against unmasking). It should not be necessary for other consumers of intelligence (e.g., White House National Security Council members working on defense policy) to seek unmasking. But they are permitted to do so, and if the NSA gets an unmasking request from, say, Susan Rice—known to be the president’s confidant—would you want to be the underling who tells her she can’t have it?
Toward the end of the Obama administration, unmaskings spiked.
In February, The New York Times ran a page-one extravaganza, based on leaks from “four current and former American officials.” “Trump Campaign Aides Had Repeated Contact With Russian Intelligence” screamed the headline.2 Spy agencies were said to be scouring “phone records and intercepted calls” from various streams of intelligence collection, showing that “members of Donald Trump’s 2016 presidential campaign and other Trump associates had repeated contacts with senior Russian intelligence officials in the year before the election.” At the time, the account continued, “Russia was trying to disrupt the presidential election by hacking” Democrats, while Trump was “speaking glowingly about” Putin and saying “he hoped Russian intelligence services had stolen Hillary Clinton’s emails and would make them public.” Consequently, the FBI was sifting through mounds of call logs and intercepted communications, as well as banking and travel records. Much of this involved “routine electronic surveillance of the communications of foreign officials.” Instead of concentrating on these proper surveillance targets, intelligence officials were shifting their focus to Americans—specifically, Americans connected to Trump—who had been monitored incidentally.
Devin Nunes, then-chairman of the House Intelligence Committee, proceeded to disclose that, after the election, the identities of Trump campaign and transition figures had been unmasked by Obama national security officials. When he implicated Rice, she initially denied knowing what he was talking about. As tends to happen with Rice, though, it was soon confirmed that her original story was misleading. True to form, she revised the story a few times before finally admitting that, well, yes, she had indeed directed the unmasking of Trump campaign officials. At least for now, the story is that the Obama administration was trying to understand why the crown prince of the United Arab Emirates was in New York City shortly after Donald Trump was elected. The prince was meeting with Trump advisers. I’m betting that Team Obama was thinking: Logan Act!
Meanwhile, we learned that Ambassador Power, whose U.N. diplomatic post was not one in which the need to unmask American identities for intelligence purposes is apparent, sought unmaskings hundreds of times. Alarmingly, Power claims she is not responsible for most of the requests made in her name. So who did it? We don’t know—all we know is that, if she is telling the truth, something went very wrong here. As we’ve seen, there was a dramatic increase in the number of queries by government officials seeking information about American citizens from NSA databases. Nunes concluded that “the total requests for Americans’ names by Obama political aides numbered in the hundreds during Obama’s last year in office, and often lacked a specific intelligence community justification.”3
Questions about unmasking have been shunted aside since first arising in 2017. Part of that is due to lack of disclosure. As the defense to unmasking charges shifted from “it didn’t happen” to “there’s nothing inappropriate about it,” Republicans meekly accepted the Democratic argument that there is almost certainly no crime involved. That is probably true: no blatant penal offense arises out of noncompliance with minimization instructions or when an official who has the lawful discretion to act exercises that discretion for political purposes. That, however, misses the point. Many government abuses of power are not courtroom prosecutable felonies. They can be much more serious than that because they are not merely private transgressions; they pervert the system of governance.4 That is why the Framers did not require impeachable offenses to be indictable crimes: the fact that a government official cannot be prosecuted in criminal court for some abusive action does not mean that the action was proper or that the official is fit to wield power.
It is also worth posing the obvious rhetorical question: if a Republican administration had unmasked the identities of Democratic political officials, is there any chance that we would not by now know the whole story—and that heads would long ago have rolled?5
The unmasking controversy has a context. So does Obama’s curio
us executive order, issued at the very end of his presidency, suddenly expanding the scope of intelligence officials who would have access to raw intelligence. The context is the transparent effort to craft a public narrative that Donald Trump could be a pawn of the Kremlin, that he could be the beneficiary of an election rigged by a hostile foreign power.
That’s why you have the leaking.
Those are not the words of your humble correspondent. They are the words of Evelyn Farkas, a former deputy defense secretary, one of the Obama administration’s most senior policy officers on Russia. She left the administration in 2015, subsequently joining the Clinton presidential campaign. In March 2017, letting her guard down among friends during an MSNBC interview, Farkas let slip that current and former Obama administration officials had been encouraging Congress to demand disclosure of classified information:
I was urging my former colleagues and, frankly speaking, the people on the Hill, it was more actually aimed at telling the Hill people, get as much information as you can, get as much intelligence as you can, before President Obama leaves the administration.… Because I had a fear that somehow that information would disappear with the senior people who left, so it would be hidden away in the bureaucracy … that the Trump folks—if they found out how we knew what we knew about their—the Trump staff dealing with the Russians—that they would try to compromise those sources and methods, meaning we no longer have access to the intelligence.
Ball of Collusion Page 40