Crime in Progress

by Glenn Simpson;Peter Fritsch;

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  No donor-supported research effort, no matter how thorough, meticulous, or well funded, was ever going to replace a legitimate federal examination of what happened in 2016. TDIP, of course, didn’t have the power to issue subpoenas to compel testimony, as Congress did. The House and Senate intelligence committees opened their investigations with at least a whiff of bipartisanship and a hint of ambition. They even held public hearings that dug into Russia’s active measures and featured riveting testimony from the likes of Comey and top intelligence officials. The Senate panel, led by Republican Richard Burr and Democrat Mark Warner, plunged in a week before Trump’s inauguration. “The Committee will follow the intelligence wherever it leads,” Burr and Warner said in a joint statement. “We will conduct this inquiry expeditiously, and we will get it right.”

  But as TDIP’s inquiries got under way, the congressional investigations into Trump’s Russia ties began to look increasingly wobbly, plagued by partisan divisions. Barely a month after the committee’s statement, the White House enlisted Burr’s help to shoot down media stories about Trump associates’ ties to Russia. Burr dutifully complied. On the House side, Devin Nunes also took his talking points from the White House but went even further, issuing a statement in support of Trump’s unfounded allegation that he’d been wiretapped by the Obama administration. He also canceled at least one big hearing, featuring former intelligence chiefs and the fired former acting attorney general, Sally Yates. It was becoming obvious that his committee’s inquiries would descend into partisan rancor as Nunes himself sought above all to protect the president.

  News of the FBI investigation, meanwhile, had dramatically raised the stakes for Trump and his defenders. The FBI was now seeking witnesses and preparing subpoenas. The congressional investigative efforts may have been looking increasingly dysfunctional, but real threats were emerging from the Justice Department.

  *  The French elections turned out to be something of a rerun of the U.S. presidential election. Colonies of fake social media accounts plugged the populist right-wing candidate, while the front-runner, Emmanuel Macron, was hit at the last minute by a leak of sixty thousand hacked emails that came out on WikiLeaks. “Macron Campaign Emails,” WikiLeaks, https://wikileaks.org/​macron-emails.

  The FBI investigation of Russia’s efforts to help Trump win the presidency was now public. Flynn had resigned after misleading the White House about his contacts with Russia’s ambassador. Attorney General Jeff Sessions had recused himself from any involvement in the matter, a product of his own Russia contacts, infuriating the president. A press corps that had largely overlooked the Trump-Russia story in 2016 was now dropping bombs almost daily. Republicans feared their new leader could fall. If they were going to keep his fledgling administration from disintegrating, they needed to start firing back—and quick.

  So on March 24, two days after Devin Nunes’s secret trip to the White House, Senate Judiciary Chairman Chuck Grassley sent Fusion a letter of inquiry that, on its surface, sought to get to the bottom of the genesis of the Russia inquiry. The pretext for this, he said, was his committee’s oversight of the Justice Department.

  “I am writing to inquire about Fusion GPS’s opposition research efforts regarding President Trump, particularly the dossier compiled for your company by Mr. Christopher Steele,” he wrote.

  Grassley then gave Fusion two weeks to answer thirteen questions, including: Who first hired Fusion to examine Trump? How much did they pay? When did Fusion hire Steele? Who did Fusion give information to once it was gathered? Did Fusion have interactions with the FBI? Did anyone from Fusion instruct Steele to go to the FBI? He also requested copies of all contracts and records of any communications with the DOJ or the FBI. On it went for three pages.

  At eighty-three and just re-elected to his seventh term in the Senate, Grassley had earned a reputation over the years as a curmudgeonly protector of whistleblowers and someone who was willing to cross his own party to defend his principles. That reputation was earned, however, a long time ago. Grassley was about to become a prime example of how far the GOP was willing to go to bend the truth in an effort to protect the party’s new standard-bearer.

  Some three weeks earlier, Grassley had sent a letter to FBI Director Comey, which immediately became public, asking whether the Obama administration had, during the presidential campaign, used law enforcement and the intelligence agencies for political ends in collaboration with Christopher Steele. The letter was politics disguised as oversight, and it wasn’t designed to elicit an answer. Grassley wanted an excuse to fulminate about being stonewalled.

  Three days after his March 24 letter to Fusion, Grassley followed up with a theatrical “DOCUMENT PRESERVATION NOTICE” instructing the firm to preserve all records and messaging related to the Trump investigation and warning that “it is very important you DO NOT destroy, remove, discard, modify or change any document.” The threat to Fusion was clear: I am coming for you.

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  Grassley publicized his pursuit of Fusion in the hope that the press would jump on his bandwagon and start asking Fusion the same loaded questions about Steele and the FBI. The company greeted that move with a mix of alarm and derision. Simpson shot Fritsch a text when Grassley released his letter publicly, just three days after sending it—and eleven days before Fusion was due to respond: “What obvious bullshit,” Simpson wrote. “I seriously doubt the media will fall for this crap,” Fritsch responded.

  And, for the most part, they didn’t. Mainstream news outlets were familiar with Grassley’s tactics and recognized his letter for the political stunt it was. It was catnip, however, for reporters at fringe, alt-right publications, whose job was to counteract the flood of real news coming from the likes of the Post and the Times with attacks on Democrats and public enemy number one, Hillary Clinton.

  Grassley’s attack, despite its transparent cynicism, was a major escalation Fusion could not ignore. Congress is vested with broad investigative powers and has the ability to compel testimony. Grassley was particularly aggressive in his use of those powers. Fusion had worked with people targeted by Grassley’s committee in the past and knew that his staff played dirty, using leaks and spin to muddy up targets for political purposes. Fritsch and Simpson also knew you could quickly go bankrupt paying lawyers to answer and rebut all the accusations, no matter how specious.

  Steele was unnerved by Grassley’s attacks on Fusion and Comey, fearing it could have safety implications for his sources should the FBI cave in and reveal their identity to lawmakers loyal to Trump, who Steele suspected would happily make their identities public. He expressed those concerns to Ohr, who sent back assurances that the DOJ and FBI wouldn’t let that happen. “Thanks for that, old friend. Please do fight our cause and keep in touch,” Steele texted afterwards. “Really fundamental issues at stake here.”

  Steele’s sense of worry deepened in mid-March when Russian agents traveled to the quaint English town of Salisbury to poison a former double agent for MI6, Sergei Skripal, with a Soviet-developed chemical weapon agent called Novichok. The Russians were clearly on a mission, Steele thought, to eliminate perceived traitors. His sources, if discovered, would be at the top of the hit list.

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  Outside of Fusion, news of the Trump camp’s surreptitious dealings with the Russians kept shaking the country. The press was now going after the Russia angle full bore, and the big papers were competing ferociously to advance the story. Each new disturbing revelation would then be picked up and aired on the television news, night and day.

  Just two days after Grassley sent his first letter to Fusion, the Post reported that Jared Kushner and Ambassador Kislyak had, in late 2016, discussed setting up a secret back channel between the Kremlin and Trump’s transition team to discuss sensitive issues such as policy in Syria. They even discussed the
use of Russian diplomatic facilities to avoid detection. This was astonishing. Why would the incoming administration need a back channel, and on Russian soil no less? The only plausible explanation was that they wanted to hide their communications from the U.S. Intelligence Community. The news only added to the mushrooming Russia narrative playing everywhere but on Fox News, which continued to rant about Clinton’s emails.

  “Just amazing,” Ohr texted Steele on March 30.

  The House and Senate intelligence committees had already announced that they would be investigating Russian interference in the 2016 election and the allegations against Trump. It was obvious that Grassley was trying to lay the predicate for a subpoena of Fusion that would force them to produce documents and appear at a hearing—a ploy to put Steele and his dossier on trial.

  If Grassley could make a case that the entire Trump-Russia controversy arose from political “opposition research,” that would go a long way toward delegitimizing other congressional and law enforcement inquiries.

  It was hard to believe he could pull that off. For one thing, the FBI would likely resist sharing details of an active investigation. For another, Senate rules required Grassley to obtain the consent of his Democratic counterpart, California senator Dianne Feinstein, in order to issue any subpoenas. Why would Feinstein go along with a subpoena of Fusion when the far more serious questions had to do with the Russian connections of people like Carter Page and Paul Manafort?

  Grassley’s public attacks on Fusion presented a conundrum for Simpson and Fritsch. They wanted to defend themselves and their work, but they were bound to silence by their confidentiality agreement with Elias, the Clinton campaign’s lawyer. If Grassley pressed the issue with a subpoena, Fusion would have no choice but to protect its duty of confidentiality to its clients, which they hadn’t waived. If the Fusion partners started making statements to the media, Grassley could argue that they had waived their right to remain silent.

  Elias’s firm, Perkins Coie, made it clear that it expected Fusion to resist Grassley’s probing. But the law firm also never offered to cover Fusion’s legal costs. That put Fusion in a tough position and became a source of tension among the Fusion partners. Fritsch thought Perkins Coie and its clients had a moral responsibility to step up and defend Fusion against the Republican assault, given that Fusion and Steele had worked at Elias’s direction and done the right thing by reporting a possible crime in progress. Simpson argued that Fusion had no right to expect help from Perkins Coie or the Democrats. After all, neither he nor Fritsch had asked their permission to share Steele’s information with the FBI and McCain; as a legal matter, Fusion had no choice but to go it alone. That wasn’t wrong, Fritsch agreed, but the reality of the situation rankled as the bills piled up. The various legal fights would cost Fusion nearly $2 million and counting.

  There was another, more strategic reason for keeping Grassley at bay for as long as possible—one that had nothing to do with money. If it came out too soon that the dossier had been paid for by the Clinton campaign, that revelation would allow the Republicans to depict Steele’s work as a partisan hit job that had hoodwinked the FBI. And that, in turn, could give Trump the political cover he needed to shut down the FBI investigation.

  Time—or, in this case, delay—was of the essence.

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  Grassley had given Fusion until April 7, 2017, to respond to his initial March 24 letter. Not content to wait for a reply, however, he broadened his political assault with yet another letter on March 31—this time to the Justice Department. In it, he falsely accused Fusion of working with a “former Russian intel officer” to lobby against the Global Magnitsky Act, a bill that would stiffen sanctions on the Kremlin and others who abused human rights. The Russian was Rinat Akhmetshin, the Washington lobbyist who had worked to discredit Kremlin critic William Browder, the Magnitsky Act’s primary promoter.

  Grassley’s pursuit of Fusion had somehow led him to Browder, the former financier who nursed a terrific grudge against Fusion for forcing him to testify years earlier in the Prevezon court case. Working for a U.S. law firm, Fusion had helped the lawyers serve three subpoenas on Browder, ultimately forcing him to testify at length about his own business dealings in Russia and the efforts he undertook with his lawyers and accountants, including Sergei Magnitsky, to avoid paying Russian taxes.

  In early 2016, Prevezon—apart from its court case—had launched a lobbying campaign against the Global Magnitsky Act, working with Akhmetshin, in a backhanded effort to discredit Browder in the halls of Congress.

  Browder had been trying for months to convince a few journalists around Washington that Fusion was part of that lobbying campaign. Unable to get anywhere, he wrote a letter to the Justice Department in July 2016 complaining that Akhmetshin had not registered with the government as an advocate for Prevezon. (That was not true. He had filed his paperwork with the U.S. Senate as required.) Nor, Browder complained, had Fusion ever registered as a lobbyist for Prevezon. That was true—but also a non sequitur: Fusion never registered because it never lobbied.

  The political play under way was transparent—at least to Fusion. The Justice Department had given no sign of having any interest in Browder’s letter, and the matter had seemed dead until Grassley suddenly revived it, resurrecting Browder’s eight-month-old attack under the pretense of his committee’s DOJ oversight. If Fusion could be depicted as having also engaged in helping out Russians in Washington, that would help Trump by evening the score and cloud the Trump-Russia narrative. Grassley was trying to normalize the behavior of Manafort and the rest of the Trump brain trust by showing that everybody does it in Washington.

  Fusion, the senator claimed in his letter, should have registered as a foreign agent under the Foreign Agents Registration Act for “their efforts to bring down a U.S. law on behalf of the Kremlin.” Grassley linked to Browder’s 2016 “complaint filed with the Justice Department,” eliding the fact that Browder barely mentioned Fusion in his July 2016 letter.

  Grassley poured it on thick, accusing Fusion of working with a “Russian gun-for-hire [who] lurks in the shadows of Washington’s lobbying world.”

  It dismayed the ranks at Fusion to be accused by a U.S. senator of working for the Kremlin. Once again, reporters on the fringe were eager to promote Grassley’s claims, none more so than Chuck Ross of The Daily Caller, the right-wing online publication co-founded by Fox News’s Tucker Carlson. The headline on his March 31 story said it all: “Trump Dossier Financier Accused of Improper Work for Kremlin.” Ross had an uncanny way of being on top of every Fusion-related development coming out of Grassley’s office, almost as if he had a friend there. Ross would later be outed by The Washington Post for his past sexist and racist blog posts under the handle Gucci Little Piggy.

  Despite all the noise coming from Grassley’s office, no real legal threat had yet emerged. No one from the DOJ had ever reached out to Fusion for even so much as an explanation of its Prevezon work.

  Fusion had decided in late March, when Grassley sent his first letter, to add the boutique D.C. law firm Cunningham Levy Muse to its legal team. Partner Josh Levy had worked on the Hill as counsel to Senator Chuck Schumer. He co-taught a class on congressional investigations at Georgetown and was respected by both parties on Capitol Hill. Levy’s partner Bob Muse was a scrappy litigator who had been a staff attorney on the Senate Watergate Committee. Both were eager to help.

  In the fights to come with congressional Republicans, they would prove adept at delivering brass-knuckle haymakers in a velvet glove.

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  Things might have been different had Grassley simply approached Fusion in good faith and asked Simpson or Fritsch to explain their past work. But given the way Grassley worked, that was unlikely. Grassley’s chief investigative counsel, Jason Foster, was known for his ruthlessly partisan attacks on Democrats, particularly d
uring the Obama administration.*

  Grassley’s decision to cast Fusion as a band of mercenaries who would do anything for money, even help Vladimir Putin, suggested to Fusion that Foster was pulling the strings. The attack was blatantly partisan and cynical: There was a logical disconnect in the notion that Fusion was working with Steele to research Trump’s Russia connections at the same time it was supposedly lobbying Congress on behalf of Putin. To most neutral observers, it made no sense. That didn’t matter in a world where one political party can safely ignore logic and facts and deliver its version of events directly to its base, unchallenged, on Fox News. It was relatively easy for Grassley to demonize Fusion without ever presenting actual evidence to back up his allegations.

  Simpson, whom Browder had singled out for retribution, bore the brunt of the media attacks from Grassley’s go-to reporters on the right. Personalizing the fight made sense for the Republicans: It’s easier to demonize a person than an abstraction like a research consulting company.

  It worked. Simpson was soon to be a star on Fox News and the opinion pages of The Wall Street Journal. It was helpful to have the attacks largely confined to a single partner, to draw fire away from the rest of the staff, but it was bruising for Simpson, who had never experienced this level of vitriol.

  Before long, Fritsch and the other partners came in for personal attack, too. The New York Post ran an op-ed that highlighted Fritsch’s $1,000 donation to the Clinton campaign as evidence of his clear bias. Seeking to inject some Trumpian xenophobia into the mix, the column also incorrectly criticized Fritsch for having “married into a family with Mexican business interests” and said Fusion partner Tom Catan had “once edited a business magazine in Mexico.” The racist dog whistle could be heard loud and clear: These people are Trump’s enemies.