Published by The Lawfare Institute
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It wasn’t that long ago that both the executive branch and the legislature in this country considered the protection of intelligence sources a matter of surpassing national importance.
During the 1970s, a renegade former CIA officer named Philip Agee went on a campaign of outing agency sources and covert operatives. Agee spent decades in exile, and an appalled Congress responded in 1982 by passing the Intelligence Identities Protection Act, which criminalized the knowing and intentional outing of U.S. covert operatives and intelligence sources whom the government is taking active steps to protect.
More recently, a lot of people, including one of the current authors, objected strenuously to the activities of Edward Snowden. Snowden didn’t disclose the names of human sources—just programmatic intelligence information. Yet he has been camped out in Moscow since the leak, unable to return to the United States for fear of the prosecution that would surely await him. Similarly, Julian Assange does not leave the Ecuadorian embassy in London for fear of arrest over his own activities. While both men have their supporters, we have never considered their jeopardy an injustice.
But what happens when the intentional outing of U.S. intelligence assets is the province not of rogue insiders, not of foreign hackers or foreign agents, not of people who end up spending the rest of their lives as fugitives, but of senior officials in two branches of this country’s government who are most responsible for protecting those assets? To wit, what happens when the Chairman of the House intelligence committee and the President of the United States team up to out an FBI informant over the strenuous objection of the bureau and the Department of Justice—and manage to get the job done? And what happens when they do so for frankly political reasons: to protect the president from a properly predicated counterintelligence investigation involving the activity of an adversary foreign power?
These questions should be the stuff of conspiratorial Hollywood movies. They are, in fact, the stuff of this week’s news.
On Friday evening, both the New York Times and the Washington Post reported that an American professor in the United Kingdom had acted as a source for the FBI during the early stages of the bureau’s investigation of L’Affaire Russe. The professor, whom both outlets reported had provided information to both the FBI and CIA, met with George Papadopoulos, Carter Page and Sam Clovis, had also had interacted in the past with Michael Flynn. His reported contacts with the campaign began shortly before the FBI opened a counterintelligence investigation on the basis of Papadopoulos’s comments to an Australian diplomat, when he interacted with Page following the campaign advisor’s visit to Moscow in July 2016. The source reportedly continued to talk to Page, Papadopoulos and Clovis through the late summer and fall of that year.
Neither the Post nor the Times named the source. But NBC pointed to a story in the Daily Caller that had named a professor who broadly fit the profile described by the Times and Post:
NBC News has not confirmed the use of informants in the Russian interference investigation, which began in July 2016. A right-wing web site, the Daily Caller, first reported that both Page and Papadopoulos met during the campaign with an American professor at Cambridge University in England.
“No evidence has surfaced publicly indicating that [the professor] was acting as a government informant,” NBC went on, “[b]ut the Daily Caller noted that right-wing media personalities have speculated about his role in recent days.”
The Daily Caller certainly seems to believe it has identified the source, and it all but alleged back in March that he was an FBI informant. The outlet itself noted the relationship between its subject and the informant reported by the Times and the Post on Friday—and the Daily Caller reporter who wrote the original story spent much of the evening protesting that the Times and Post had not credited his reporting.
We cannot report the source’s identity, having no sources of our own on the subject. If we did have such sources, we would not report the informant’s identity anyway. Lawfare does not publish leaks of classified programs. We don’t blow intelligence or law enforcement sources either, even when their identities are not classified. So we have no information to provide about any source the FBI may or may not have used here. We are working entirely off the public record. In addition, we are making a point in this post of not naming the individual whom the Daily Caller has publicly identified. As long as the Post and the Times continue to shield his identity, so will Lawfare.
If, however, we assume for a moment that the Daily Caller has the identity of the informant correct, then it’s hard to escape the conclusion that his outing has taken place at the joint hands of the House intelligence chairman and his staff, certain actors in the conservative press, and the president of the United States.
While a full understanding of how this outing took place would require a significant investigation, the public record alone tells a remarkable story—and not a pretty one. Here’s our effort at a reconstruction of how this outing happened.
The individual’s name first became public in a March 25 Daily Caller piece by Chuck Ross, entitled, “A London Meeting Before The Election Aroused George Papadopoulos’s Suspicions.” The story reports that the professor met with Papadopoulos, Page, and one other unnamed official. Much of the story is clearly sourced either to Papadopoulos or someone close to him (“a source familiar with Papadopoulos’s thinking” is cited right near the top and Papadopoulos’s meeting with the informant is described by “a source with knowledge of the meeting”). And the meeting with Carter Page is described to Ross on the record by Page himself. But the story also reflects input from a different source: “a source familiar with the investigations into Russian meddling told TheDCNF [the professor’s] name popped up on investigators’ radar. There is no indication of any wrongdoing on his part, and it is not clear if he has been in touch with investigators (emphasis added).”
The Daily Caller report does not accuse the individual of being an FBI informant, but it does strongly suggest it—based principally on Papadopoulos’s suspicions. “Papadopoulos now questions [his] motivation for contacting him,” Ross writes. And later: “Fitting with Papadopoulos’s theory . . . is the professor’s longstanding connections to both British and American intelligence agency officials. He also worked at the Department of State, Department of Defense, Department of Justice, and in three presidential administrations."
It is unclear from Ross’s story whether he originally got the name and the tip about his role from the “investigators” or from Papadopoulos or possibly from Page. It is also not entirely clear that the “investigators” in question are congressional investigators, much less that they are House intelligence majority staffers working for Nunes. That said, taking Ross’s sourcing statements at face value, it appears that someone associated with some investigation acknowledged interest in and awareness of someone who had served as an FBI source and shared at least that fact with a reporter exploring a theory that might out that source. We can assume that this disclosure did not come from the FBI or the Mueller investigation.
If it’s not clear whether Nunes and his staff helped the Daily Caller float the name in the first instance, it is totally clear what they did with the story once it became public: If the Daily Caller has its facts right, Nunes seems to have elevated the matter and begun demanding information about him from the FBI and Justice Department. Instead of acting to protect the source, as one would expect the chairman of the House intelligence committee to do, in other words, he began pushing for the Justice Department and FBI to turn over information about him—thereby endangering him.
Nunes didn’t start requesting information about the source right away—perhaps because, by the time the Daily Caller story came out, he was already in the middle of a tangle with the Justice Department over a different matter: the production to the committee of another set of sensitive documents. On April 11, Nunes got what he wanted, an unredacted copy of the memo in which Deputy Attorney General Rod Rosenstein laid out the contours of the Mueller investigation.
Two weeks later, on April 24, he moved on to demanding material on the professor in a letter to the Justice Department. By the week of May 1, he had issued a subpoena for it. As the Post reported at the time, though the subpoena exclusively concerned information about the particular individual, Nunes denied that he was focused only on the source:
The subpoena, which was reviewed by The Washington Post, demands “all documents referring or related to the individual referenced in Chairman Nunes’ April 24, 2018 classified letter to Attorney General Sessions.” That is the only material the subpoena seeks.
In an interview Wednesday, Nunes maintained that he was “not interested in any individual.”
Nor did Nunes back down, even when intelligence officials cautioned that his document request could have dangerous consequences. The Post writes that FBI and other intelligence community leadership reached out to the White House on May 2, warning that “turning over Justice Department documents could risk lives by potentially exposing the source.” At the time, the intelligence community was able to persuade the White House not to disclose the information. But according to the Post, “it is unclear whether Trump was alerted… that information developed by the intelligence source had been provided to the Mueller investigation”—and “[s]everal administration officials said they fear Trump may reverse course and support Nunes’s argument.”
The confrontation escalated over the next few weeks, with Nunes threatening to hold Attorney General Jeff Sessions in contempt. On May 10, Rosenstein and officials from the FBI and Office of the Director of National Intelligence briefed Nunes and his fellow intelligence committee member Trey Gowdy, informing the congressmen that the Justice Department was not able to provide information on the source. At the time, the meeting seemed to defuse the situation: Nunes and Gowdy issued a statement announcing that “we look forward to continuing our dialogue next week to satisfy the Committee’s request.”
But on the same day, Wall Street Journal editorial writer Kimberley Strassel published a column that quickly reignited the controversy. She noted that Nunes’s document request concerned material on a “top secret intelligence source” and speculated:
When government agencies refer to sources, they mean people who appear to be average citizens but use their profession or contacts to spy for the agency. Ergo, we might take this to mean that the FBI secretly had a person on the payroll who used his or her non-FBI credentials to interact in some capacity with the Trump campaign.
Strassel said that she thought she knew the identity of the informant, but wrote that “my intelligence sources did not provide it to me and refuse to confirm it. It would therefore be irresponsible to publish it.”
Her column nonetheless inflamed a far-right media ecosystem that had been already engaged in fevered speculation over the individual identified in the March 25 Daily Caller story. Far-right pro-Trump bloggers and Twitter users began discussing that person as a “mole” inserted into the campaign by Obama administration officials trying to take down Trump. The theory gathered steam and soon reached Fox News: On May 12, Gregg Jarrett theorized about a mole in the campaign on Lou Dobbs’s show, though he did not use a name.
The mainstream press actually behaved quite admirably in the face of this ferment. The Post and the Times, clearly at the request of law enforcement, continued to withhold the informant’s name and actually withheld a lot of what they knew about the underlying story as well. The Post, for its part, published detailed coverage of Nunes’s antics, but withheld all information about the source, save that he was a U.S. citizen who had long assisted the U.S. intelligence community. The Times, given what it eventually published on Friday, appears to have held back a lot too.
But on May 16, the Times published a long story on the origins of the Russia investigation. And that story contained this elliptical reference to the source: “And at least one government informant met several times with Mr. Page and Mr. Papadopoulos, current and former officials said. That has become a politically contentious point, with Mr. Trump’s allies questioning whether the F.B.I. was spying on the Trump campaign or trying to entrap campaign officials.”
This wound up speculation in right-wing media even further. On May 17, Laura Ingraham mentioned the name on-air to a panel of guests including Roger Stone. (“[T]his is the first prime-time mention . . . I’m aware of,” wrote one of the bloggers who had earlier theorized about the individual’s role as a spy.) The Daily Caller published another story on the professor, this time featuring an on-the-record interview with Carter Page. That story took off, too, rocketing to Breitbart and Big League Politics, a website founded by former Breitbart employees.
And at that point, President Trump got involved. A normal president, sensing that a U.S. intelligence source was at risk, might have called Nunes and told him to back down so as to protect critical intelligence equities. Trump took to Twitter instead:
Reports are there was indeed at least one FBI representative implanted, for political purposes, into my campaign for president. It took place very early on, and long before the phony Russia Hoax became a “hot” Fake News story. If true - all time biggest political scandal!— Donald J. Trump (@realDonaldTrump) May 18, 2018
“Apparently the DOJ put a Spy in the Trump Campaign. This has never been done before and by any means necessary, they are out to frame Donald Trump for crimes he didn’t commit.” David Asman @LouDobbs @GreggJarrett Really bad stuff!— Donald J. Trump (@realDonaldTrump) May 18, 2018
Trump’s tweets on Friday made it impossible for the press to continue holding back what they had. Given that the Daily Caller had already published a fair bit about these meetings and that the name was floating freely around the conservative media ecosystem and that the president himself—the person who is ultimately responsible for protecting the information—was now actively misrepresenting it to feed conspiracy theories, how could the Times keep quiet anymore? How can a major news organization withhold information to protect executive branch equities when the executive branch itself is not merely not protecting it but actively lying about that information at the highest levels for overtly political purposes?
And so the Times published. And the Post followed suit. In some ways, it’s amazing that both papers waited so long—and that they continued to withhold the name when they did so.
Donald Trump did not leak the name of an intelligence source, and the record is not at all clear that Devin Nunes or his staff did so either. But the record is entirely clear that both men behaved in a way that actively contributed to the outing of an informant.
What are the consequences when the president and the intelligence community leadership behave this way? The honest answer is that we don’t know. Something like this has never happened before. But it’s fair to say that there are profound risks at many levels.
Most immediately, there’s the risk to the source himself. That is presumably manageable. The FBI can presumably take the steps necessary to protect him, though probably not without significant disruption to his life.
The bigger problem may be the threat to those who have worked with the source in the past. The Post’s reporting makes clear that this is a first-order concern right now:
The stakes are so high that the FBI has been working over the past two weeks to mitigate the potential damage if the source’s identity were revealed, according to several people familiar with the matter. The bureau took steps to protect other live investigations that he has worked on and sought to lessen any danger to associates if his identity became known, said these people, who spoke on the condition of anonymity to discuss sensitive intelligence operations. For years, the professor has provided information to the FBI and the CIA, according to people familiar with the matter. He aided the Russia investigation both before and after special counsel Robert S. Mueller III’s appointment in May 2017, according to people with knowledge of his activities.
In addition, there’s the problem of the message to other potential sources. One way to think about this problem is to ask yourself this question: How confident are you that the U.S. intelligence community could protect you in exchange your help? And are you more confident or less confident on that point given that the chairman of the House intelligence committee is demanding information about an intelligence source and that the President of the United States is tweeting false information about him—requiring correction by major press operations? Such questions answer themselves.
This is what FBI Director Chris Wray was talking about the other day when he told the Senate Appropriations Committee that, "The day that we can't protect human sources is the day the American people start becoming less safe." Wray put the matter bluntly: "Human sources in particular who put themselves at great risk to work with us and with our foreign partners have to be able to trust that we're going to protect their identities and in many cases their lives and the lives of their families."
Wray’s predecessor, James Comey, asked last week at Brookings about Nunes’s behavior, put it even more dramatically:
I thought everyone understood that the absolute core of the intelligence community, including the FBI, is its human sources. That’s really all the FBI is. That’s really all the CIA is: people who tell us things that we can use to protect the country and to protect innocent people in exchange for a promise that we will make sure you are protected. That is the golden core of those organizations and I thought everyone understood that. And to play with that, to jeopardize that . . . risks the death of the thing that is at the core of our ability to protect this country. I’m not given to overstatement. You cannot overstate the danger in that sort of behavior to the security of the United States.
Then there’s the message it sends to the Edward Snowdens and Philip Agees of the world—the ones who are still in government and thinking about making or engineering potentially dangerous disclosures, for whatever reason. The message is this: Why not do it? The president and the House intelligence committee chairman are helping to out intelligence assets, after all. If the elected leadership of the country isn’t concerned about risks to intelligence sources, why should you take those risks seriously when calculating whether to release sensitive information? If an FBI informant isn’t safe from Nunes and Trump, is it really just that Edward Snowden has to remain in exile in Moscow?
As a conservative lawyer, who at one point considered taking a job in the administration and still has close ties to it said to one of us last night: “All this man [the source] wanted to do was to help our country. And this was a legitimate counterintelligence inquiry with more than an adequate foundation and a perfectly appropriate method. Trump and Nunes have defiled the oaths they took. It’s just obscene.”
While we were preparing to publish this piece, the president dug in further, tweeting:
If the FBI or DOJ was infiltrating a campaign for the benefit of another campaign, that is a really big deal. Only the release or review of documents that the House Intelligence Committee (also, Senate Judiciary) is asking for can give the conclusive answers. Drain the Swamp!— Donald J. Trump (@realDonaldTrump) May 19, 2018
Don’t underestimate this episode. It will have a long tail and big consequences—all of them terrible.