Criminal Justice & the Rule of Law Executive Branch

The Inspector General Should Review the FBI Counterintelligence Probe into Trump

Stewart Baker
Monday, January 14, 2019, 12:45 PM

Like everyone else on Lawfare, I was struck by the recent New York Times story about the FBI opening a counterintelligence investigation into President Trump after he fired former FBI Director Jim Comey. It adds to my unease, not about President Trump but about the FBI.

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Like everyone else on Lawfare, I was struck by the recent New York Times story about the FBI opening a counterintelligence investigation into President Trump after he fired former FBI Director Jim Comey. It adds to my unease, not about President Trump but about the FBI.

In the end, the story probably doesn’t tell us anything new about President Trump. If the investigation had turned up evidence in the last 18 months that the president was working for Russia and covering his tracks from investigators, we’d have the evidence by now, not just a story about investigators’ suspicions in mid-2017.

What’s most troubling about the story is what it seems to say about the FBI and its leadership. I agree with Jack Goldsmith that the story is deeply discomforting. There is only one American agency with a history of destroying American politicians to serve its own bureaucratic interests. FBI Director J. Edgar Hoover used illegal wiretaps and other files on political leaders to ensure his power. When he was gone, Mark Felt’s effort to succeed him included leaks that destroyed Richard Nixon. Now we hear that the bureau opened a counterintelligence investigation of President Trump on the politically explosive premise that he was doing Putin’s bidding. I don’t think that’s an accident. We like to say that no president is above the law. The unspoken corollary is that no president is above the FBI. If so, we need to be damn careful about how the FBI uses that power.

Like Goldsmith, I’m a long-time admirer of the bureau. It rarely has any doubt about who the bad guys are or what they deserve—relentless, overwhelming, and street-smart pursuit within the law. But the bureau’s self-certainty has risks, summed up by the old saw that for the FBI there are only two kinds of people: agents and suspects.

And, like Goldsmith, I think the Trump campaign and Russian interest in it posed an impossible problem for the bureau and other intelligence agencies. There was too much smoke to ignore. Russia’s effort to influence the campaign had to be probed. But the decision to add President Trump as an individual counterintelligence subject of the investigation is a lot harder to justify,

There are two possible motives for adding the president to the counterintelligence probe. One—call it the “standard narrative”—is that the president’s firing of Jim Comey was evidence that the president intended not just to obstruct the criminal probe of his campaign but also to cover up a compromising relationship with Putin. The alternative narrative is that expanding the probe to the president himself was simple bureaucratic revanchism: “You take out our guy and we’ll take you out.” I’m guessing there was a mix of motives here, but for discussion purposes, let’s treat them as competing narratives.

Let’s start with the standard narrative: According to the New York Times, former FBI general counsel Jim Baker summed up the case for investigating the president in congressional testimony: “Not only would it be an issue of obstructing an investigation, but the obstruction itself would hurt our ability to figure out what the Russians had done, and that is what would be the threat to national security.” That seems like a fair statement of the justification—and a pretty thin basis for something as momentous as launching a counterintelligence probe of the president. Was Jim Comey himself personally running the investigation, so his removal would leave it crippled? Wouldn’t any attack on the counterintelligence investigation have required cooperation from the men who replaced Comey—first Andrew McCabe, and later Chris Wray? Was the bureau going to investigate them, too? Of course not.

Why not let the criminal investigation play out and expand it to national security if and when the evidence justified it? It’s hard to see what extra authorities agents would gain from the expansion—unless they planned on seeking a FISA warrant to wiretap the president. I’m guessing we’d have heard about that if they did. So what was the point? No one seems to have taken seriously the question, “Why do we need to take this norm-busting step?”

What about the alternative narrative, in which the bureau comes off as more tribal than magisterial? Let’s start with Andrew McCabe, who made this call as acting FBI director but whose name is mysteriously missing from the Times account. He was seen inside the bureau as Comey’s guy, accelerated into the deputy slot because of the director’s favor. And he had reason to resent the conservatives who had embarrassed him over his wife’s campaign for the Virginia legislature and its ties to Hillary Clinton fundraisers. Equally important, during the week between Jim Comey’s firing and the naming of Robert Mueller as special counsel, it seems as though the entire Justice hierarchy was losing all sense of proportion in the face of President Trump’s own norm-breaking. Deputy Attorney General Rod Rosenstein was talking openly to his aides about wearing a wire to his meetings with the president. It’s fair to say that Justice and the bureau thought for a time that they were at war with the president, and when those agencies go to war, the weapons they use are investigations.

In the real world, of course, those two competing narratives braid around each other; they are less competing than complementary. The decision was probably a bit of “just doing our job” and a bit of “don’t screw with us.” If I had to guess at the decision’s origins, I’d look to Jim Comey’s statement that he had a friend leak the details of Comey’s meetings with the president in the hope that Rod Rosenstein would appoint a special counsel. I doubt he hid this notion from the team he left behind at the bureau. And that team could reasonably assume that the special counsel would inherit the existing FBI investigation as it stood; so the decision to quickly expand the probe could have been a way of ensuring the widest possible latitude for the special counsel’s office.

But who knows? And that’s what makes me uneasy. The political and bureaucratic motives mixed into this incident are reminiscent of the motives mixed into the decision to launch an investigation of Russia and the Trump campaign, the decision to rely on Christopher Steele’s research despite his partisan funding, and the decision to interrogate national security adviser Michael Flynn in the slipperiest of fashions. There are reasons why all of these things might have seemed necessary to honest, committed cops just doing their job. But they also offer a roadmap for how to abuse counterintelligence authority to serve partisan ends—a roadmap that more or less begins where the civil liberties protections of the 1970s end.

My concern is that we’re not taking that risk seriously because so many former officials and commentators believe that President Trump deserves all this and more. Some of them still hope that the election of 2016 can be undone, or at least discredited. This leads to a perseverating focus on leaks and scraps from the investigation and a determined lack of concern about the investigation’s sometimes tawdry origins. (Yes, I’m talking to you, #BabyCannon!)

If we’re going to prevent future scandals, we need to look at both. We need to know the answers to a lot of questions that are not being seriously addressed today: To what extent was politics involved in the decision to open the Trump-Russia investigation; to what extent did politics drive its direction; to what extent was politics involved in the Obama administration’s transition intelligence leaks; and, finally, to what extent was politics involved in adding the president to the counterintelligence probe?

The only independent review of any of these questions seems to be the investigation launched by Justice Department Inspector General Michael Horowitz. He’s examining the FISA application for Carter Page. That’s a good start, but it’s only a start. It’s a commonplace insight that President Trump’s norm-defying conduct has triggered norm-defying payback by others. I’m sure we’re going to learn about the first, but we can’t ignore the second.

It’s time to expand the Horowitz inquiry, or something like it, into all of these events.

Stewart A. Baker is a partner in the Washington office of Steptoe & Johnson LLP. He returned to the firm following 3½ years at the Department of Homeland Security as its first Assistant Secretary for Policy. He earlier served as general counsel of the National Security Agency.

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