The Counterintelligence Gap: An Update

Benjamin Wittes
Thursday, August 27, 2020, 12:49 PM

A footnote in a House Intelligence Committee memo confirms the existence of a significant hole in counterintelligence with respect to L’Affaire Russe.

Rep. Adam Schiff addresses a crowd at the 2019 California Democratic Party State Convention in San Francisco (Gage Skidmore/ BY-SA 2.0/

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More than a year ago, in the wake of the release of the Mueller report, I became concerned about an effect I dubbed the “counterintelligence gap” in the various investigations of L’Affaire Russe. The idea of a counterintelligence gap was based on the text of the Mueller report, which suggested that certain important counterintelligence questions regarding Russian interference had gone unaddressed: unaddressed by Mueller, unaddressed by the FBI and unaddressed by everyone else.

On Tuesday, House Intelligence Committee chairman Adam Schiff appeared to confirm the existence of a counterintelligence gap. The confirmation comes in a footnote to a memo he wrote narrowing the scope of the committee’s subpoena to Deutsche Bank for the financial records of President Trump, his immediate family and his businesses. The footnote does not confirm my worst fears in their entirety, but it gets pretty close and bears some attention.

The concern about the counterintelligence gap has its origins in the Mueller report itself. Throughout the Mueller investigation, many commentators—myself included—had assumed that the probe had both criminal and counterintelligence elements. The assumption made sense and jibed with what we knew about the history of the Russia investigation. The FBI had opened both a criminal and counterintelligence probe of Trump, after all, and the original Crossfire Hurricane investigation had been a counterintelligence investigation. Given that Mueller’s probe had subsumed the FBI’s existing investigation, it made sense that there were counterintelligence elements of his investigation.

But the assumption turned out to be wrong. Back when the Mueller report came out, the following passage on page 13 jumped out at me:

From its inception, the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI. The FBI’s Counterintelligence Division met with the Office regularly for that purpose for most of the Office’s tenure. For more than the past year, the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send—in writing—summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices. Those communications and other correspondence between the Office and the FBI contain information derived from the investigation, not all of which is contained in this Volume. This Volume is a summary. It contains, in the Office’s judgment, that information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results.

As I wrote at the time,

In other words, the Mueller probe was a criminal probe only. It had embedded FBI personnel sending back to the FBI material germane to the FBI’s counterintelligence mission. But Mueller does not appear to have taken on any counterintelligence investigative function. And the report is purely an account through the lens of the criminal law. This partly, though only partly, explains why there is no classified information in the report, which contains no “portion markings” anywhere.

This point has a major analytical consequence for the entire way one reads the Mueller report: Don’t assume it answers counterintelligence questions. Where it concludes that someone didn’t engage in a conspiracy, don’t confuse that with answering the question of whether there is some counterintelligence risk associated with that person. Instead, read the report only as an account of the disposition of the criminal questions associated with L'Affaire Russe. But keep in mind the following question as well: If I were an FBI counterintelligence agent and I knew this material, how concerned would I be about the individual in question?

A lot of people had trouble accepting that Mueller had abjured the counterintelligence components of L’Affaire Russe. Even after this passage went public, it was still routine for respected analysts to insist that his probe had significant counterintelligence elements.

But it didn’t. And that raised an important question: What happened to all of that counterintelligence material that Mueller had kicked back to the bureau? I raised this concern in a tweet thread in April 2019:

After the purge of the FBI leadership and the people who had carried the ball on Russia CI matters as pertains to Trump World, who at the FBI was going to stick their necks out to be aggressive on this matter?

The incentive structure at the bureau cannot favor right now any agent getting assigned to a "special" involving any politically sensitive matter, let alone one involving Russia CI as pertains to figures around the president.

It also cannot favor anyone in leadership saying that notwithstanding the firings of senior leadership, the shunting aside of other leaders, and the removal of line agents involved in the matter, the FBI should actively focus on CI threads of this type.

So I worry about a counterintelligence gap. That is, Mueller—the person with the independence—construed himself narrowly as a prosecutor (probably rightly under the reg) and set up a one-way street for CI information to go back to the FBI.

And the bureau—the entity with the mandate—has every incentive to be cautious. So I ask: Who, if anyone, is carrying the CI football here?

It is this question that Schiff’s footnote this week answers. And the answer appears to be, as I feared, that nobody has had the ball.

The footnote in question, footnote 31, reads as follows:

the investigation conducted by Special Counsel Robert Mueller was not a counterintelligence investigation and, in any event, his Report does not examine the potential counterintelligence risks arising from the President’s foreign financial ties. Based on the Committee’s review, it does not appear that Special Counsel Mueller issued any grand jury subpoenas to obtain the President’s financial records. The Committee also has reason to believe, based on its oversight work, that the FBI Counterintelligence Division has not investigated counterintelligence risks arising from President Trump’s foreign financial ties. In addition, the recently released final volume of SSCI’s Report on Russian interference in the 106 election makes clear that SSCI did not obtain President Trump’s financial records or examine the counterintelligence risks arising from the President’s foreign financial ties, although certain Senators urged the committee to expand its counterintelligence investigation to include this threat (emphasis added).

The answer, to be sure, is not a complete one. By its terms, the footnote only deals with counterintelligence matters involving the presidential financial records, not other counterintelligence leads. And the Mueller report was, of course, not entirely devoid of examination of the Trump Organization’s engagements with Russia. But at a minimum, it establishes the existence of a counterintelligence gap with respect to financial entanglements. And it almost certainly implies that a larger gap exists too, at least within the executive branch.

The Senate Intelligence Committee report, the final installment of which was released last week, has to a degree I would not have thought possible closed the gap with respect to a raft of matters. And the Schiff seems bent on doing so with regard to financial matters. So the counterintelligence realm is an area in which congressional investigation has played, and is playing, a critical and salutary role. But the gap remains disturbing. There is likely significant counterintelligence risk hidden within it.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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