The Paranoid Style in American Oversight, Part II

Editor’s note: Read “The Paranoid Style in American Oversight, Part I,” here.

Sen. Chuck Grassley (R-Iowa) has never concealed his distaste at the Federal Bureau of Investigation and Justice Department’s attempt to hold Donald Trump accountable for his failed coup, an investigation code-named by the FBI as ARCTIC FROST. Beginning as a case managed out of the FBI’s Washington Field Office, it was moved to Jack Smith’s Special Counsel’s Office upon his appointment, and was closed, with the associated indictment dismissed, upon Trump’s second ascension to the presidency.

Grassley has never  tempered his language when vilifying ARCTIC FROST personnel: His website contains dozens of webpages heaping criticism on the original assistant special agent in charge over the matter. The fusillade began in May 2022 and has continued throughout this year, even though the official resigned in August 2022. While the senator’s crusade in this matter was never particularly lonely, so long as Christopher Wray remained the Bureau’s director, Grassley could only base his accusations on leaked documents provided by purported whistleblowers. But once Kash Patel and Dan Bongino claimed the  highest ranks of the FBI, the Senator’s endeavors soon found succor in released documents provided by the new Director Patel (all helpfully posted online by Rep. Jim Jordan [R-Ohio]), and vaguely worded innuendos from the deputy director. Now lower level investigators receive a treatment similar in tone, if not frequency, as that leveraged by Grassley against their former assistant special agent in charge.

According to Grassley, the entire investigation “was the vehicle by which partisan FBI agents and Department of Justice prosecutors could achieve their partisan ends.” Jordan was not as concise, instead launching into a ten-minute paranoid fantasia to make a similar allegation, somehow tying together the Steele Dossier, the Mueller report, the two impeachment efforts, the Fulton County prosecution, the Jan. 6 hearings, the classified documents investigation in Mar a Lago, Jack Smith’s gag order during the false electors prosecution, big tech, academia, Hollywood, the Democratic Party, and the federal bureaucracy—all in an effort to paint the nation’s premier law enforcement agency as little more than political commissars drunk on power. Say what one will about the congressman from Ohio, but he can certainly weave a tangled web out of the flimsiest of silk.

Much like Grassley’s efforts to portray the opening of ARCTIC FROST as a deviation from normal case predications, these ideological confreres—Jordan, Patel, and Bongino—and their attempts to cast doubt on the wisdom and propriety of specific investigative steps once again relied on an unruly mélange of documents, proffered to the public in haphazard order, and without any context or reference to any extant FBI and Justice Department policies. But for those truly interested in understanding how the case unfolded—and who seek such comprehension without political goals or ideological rancor—it’s worth imposing a narrative architecture on the records, and examining them in a thematic fashion, investigative technique by investigative technique, to understand the special agents’ actions in a more incisive and objective fashion. Viewed through such a lens, something important becomes obvious: The FBI’s investigation into the fake electors plot was not overly aggressive in any fashion. If anything, the case agents acted logically, prudently, and, to use a phrase beloved by law and order types, by the book.

Grassley and Jordan are not idiots. But the story they tell—with the assistance of Patel and Bongino— while full of sound and fury, ultimately signifies nothing.

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Large FBI investigations are unwieldy beasts. The more subjects they encompass, and the greater the potential for public controversy, the more difficult they are to organize and manage. It is not nearly enough for an FBI agent to know whether a putative defendant is guilty of a certain crime; each and every element of an offense must be proven by evidence which can be used in open court. The more complex a criminal scheme, and the more individuals involved in a potential conspiracy, the more witnesses, records, documents, and so forth must be analyzed by the investigators. This becomes increasingly more difficult when the glare of media attention illuminates every step taken: Witnesses and victims may become fearful of cooperating with the government for fear of retribution, malefactors may attempt to hide or destroy evidence, and subjects and their attorneys may leverage dilatory tactics to avoid any sort of ultimate reckoning. This is why, on any given day, there is always at least one field office in the country where a special agent quietly mutters the phrase “big cases, big problems.” That apercu, an abridgement of “Big cases, big problems; little cases, little problems; no cases, no problems,” is common enough that it may as well be the FBI’s unofficial motto.

Partly for these reasons, most FBI agents begin their cases by using the simpler types of investigative techniques. More sophisticated operations and stratagems do not often occur until initial predications have been proven, and the FBI and Justice Department have agreed upon some sort of charging strategy. But this norm is not merely a matter of common sense. It is also mandated by the FBI’s Domestic Intelligence and Operations Guidelines. That volume, commonly known within the Bureau as “the DIOG,” functions as the FBI’s internal scripture, and accordingly contains both affirmative obligations and outright prohibitions as to actions that a special agent or intelligence analyst may take in the course of an investigation. Its rules can often be esoteric, and require the intercession of chief and associate division counsels, but its most important commandment is remarkably simple: Personnel must always endeavor to infringe on citizens’ privacy and rights to the absolute minimum degree possible at any given point in time.

(Historians of the FBI under J. Edgar Hoover, or archivists who have pored over the Church Committee’s voluminous findings, might scoff at this assertion, but times have greatly changed since those eras in a way that should give at least some comfort to civil libertarians.)

The stricture is first articulated in DIOG §4.4.1, which mandates that employees always use the least intrusive methods possible to obtain information. The guidelines lay out a number of factors which determine intrusiveness, but also note that making such an evaluation “is both a logical process and an exercise in judgement.” In other words, there is no flow chart or formula; the relevant factors at play “are not fixed points on a checklist.” An investigator’s individual discretion is not just something for which the FBI accounts, but which it actually encourages.

That said, the DIOG itself does offer some clue as to ranking various methods from least to most intrusive. The FBI allows for different stages of investigations, with increasing levels of predication required: assessments, preliminary investigations, and full investigations. Assessments only allow for the least sophisticated and the least burdensome investigative techniques. Open source research, or requests for extant records from other government agencies, for example, would be common at this stage. A full investigation, on the other hand, allows investigators to engage in more elaborate forms of intelligence gathering, such as carrying out telephonic or electronic surveillance under the authority of a Title III or FISA warrant. Therefore, if a technique is allowed under a mere assessment, it is generally on the less intrusive side of the continuum.

Another way to gauge the intrusiveness of a technique is to simply look at the number of approvals required to leverage it. A FISA warrant requires a panoply of signatures from both FBI executive and main Justice Department officials, to say nothing of the imprimatur of an Article III judge; examining publicly available information, however, can be done without any approvals at all.

Under DIOG §18.5.6.4, interviews are allowed in assessments, and, absent certain circumstances which do not apply here, require no approvals to conduct. Thus one of the earliest steps the ARCTIC FROST team took was to schedule interviews with persons who may have been aware of the false electors plot.

As the documents released by Grassley and company make clear, nothing occurred haphazardly in attempting to hold these conversations. The case agents attempted to contact all potential interviewees in advance, and those with counsel or who wished to retain counsel were allowed to request a postponement of the discussion, and those who were political candidates were removed from the interviewee list per a variety of Justice Department policies and prudential concerns. As the interviewees were scattered across the country, the Washington Field Office asked other FBI divisions to assist in the effort, and also provided general guidance to its colleagues as to the recording and administrivia of the conversations (see pages 39 through 56 of this document, provided by Kash Patel and posted online by Jim Jordan).

To the extent that Patel and Jordan have made public the results of any of these interviews, the FD-302s – the FBI’s standard testimonial document summarizing an interview – reveal nothing indicative of an overly aggressive investigative strategy; on the contrary, for example, the involved special agents curtail any discussions upon a request by the subject for a lawyer’s advice (see pages 57 through 58 of this document). During another interview, the FBI personnel show similar restraint and deescalate a fraught situation when the subject verbally and physically assaults them (see pages 27 through 31 of this document). They simply leave the premises rather than force the moment to its proverbial crisis.

The demeanor with which the interviewing agents comported themselves is not that of politically motivated, ideologically blinded inquisitors. They simply act as professionals, which the public, of course, has every right to expect of them.

Much would be made of the Washington Field Office’s request for $16,600 to conduct these nationwide interviews (see pages 65 through 66 of this document). Grassley would later bemoan these “dozens of interviews across the country at taxpayer expense,” and if anyone should be free to criticize the intricacies of FBI funding, it would be Grassley; he does chair the committee which oversees the organizations. So it’s worth taking his statements seriously and attempting to measure his complaints in a quantitative manner.

The FBI’s budget request for 2022 was just under $10,000,000,000 (the link goes to a press release about the request, because the Justice Department has removed the actual document from its website, which can still be accessed via the Internet Archive’s Wayback Machine). The cost of the ARCTIC FROST interviews, which drew Grassley’s ire, represent .000001 percent of the total monies granted to the organization. The average small field office spends more than that on training ammunition during any given year; it would not even make the slightest dent in the total annual sums paid by the Washington Field Office for using the D.C. area’s toll roads. To express rage over $16,600 might play well in front of cameras, or as a line in a press release, but it’s essentially making an argument based on a rounding error.

But the furor over run of the mill, non-sensitive interviews pales in comparison to the fury resulting from the ARCTIC FROST team’s various endeavors to obtain telephony metadata for the various actors who helped further the attempted coup. One such attempt related to the government-issued phones once issued to Donald Trump and Mike Pence, one pertained to communications involving Rep.Scott Perry (R-Calif.), and the final one, which did the absolute most to eventually encourage Grassley and Jordan’s apoplexy, examined the toll records of eight senators and one congressman. Given that actual devices were seized from Perry, it is likely that his personal content was sought in the form of stored messages. While those in the executive branch in the group might make an objection to content being seized, too, it’s worth reiterating that the phones in question never belonged to them, and as government devices, severely curtailed—if not outright eliminated—any Fourth Amendment privacy claims that they may have had in the matter.

The seizure of the phones once used by Donald Trump and Mike Pence should not be a cause for controversy, for the simple reason that the phones never belonged to either of them. The devices were the property of the executive branch as an institutional entity. The two individuals did have, of course, a debatable privacy interest in whatever messages or communications may still have been stored on the phones, but for that reason, the investigative team obtained a search warrant signed off on by a federal judge. Nothing in this chain of events – obtaining the phones, seeking and getting a warrant for their contents, and analyzing the results – occurred in anything like haphazard or ad hoc fashion. As one of the case updates (which Grassley himself made public) demonstrates, the Justice Department conducted a prudential analysis on the best way to move forward with these steps, and only did so when the FBI felt it had enough evidence already for four charges: attempt or conspiracy to corruptly obstruct, influence, and impede the certification of the Electoral College vote; falsification of records; conspiracy to defraud the United States; and, mail fraud. Another Grassley-provided document demonstrates that even after the phones were to be obtained (see Exhibits G and H of the attached link), the FBI planned to leave them sequestered and unexamined until the search warrant was finalized and approved. Grassley and his cohorts have not provided a scintilla of evidence that these processes – completely standard, ethical, and legal under all DOJ guidelines, FBI policies, and relevant Fourth Amendment case law – were anything other than, to borrow that phrase once again, by the book.

The seizure of Trump and Pence’s government-issued phones, in the grand scheme of things, did not generate too much controversy, but the taking of Perry’s phone, along with the subpoenas for the toll records of one other House member and eight senators set off an unhinged temper tantrum from the affected legislators (although one may question why, if their rage was based solely on neutral principles, they attempted to use the events to line their own pockets). Their reaction, even if performative, was entirely unjustified. But in order to understand why, a bit of policy context, as well as a reminder of the historical background against which this occurred, is required.

From the point of view of an investigator or experienced prosecutor, reviewing toll records is not a particularly invasive technique.The information received in response to such a subpoena contains the originating phone number, the phone number called, and the date, time, and length of the call. Absolutely no content or inkling of the relevant conversation is revealed to the recipient of the records. Partly for this reason, the standard to obtain them is not probable cause, but simply relevance to the investigation. The requests for such records often occur at the early outset of an inquiry as an initial means of figuring the potential universe of subjects.  Many individuals whose records are analyzed end up being excluded from future investigative steps – as apparently happened here, for the most part – and the use of toll record analysis in the early stages of a case preempts the account holders and creators of the records from having to deal with the ongoing miasma of a criminal investigation; after all, the goal of any FBI inquiry is not only to identify, arrest, and prosecute a guilty subject, but also to exonerate anyone who is innocent. (So run of the mill is this technique that, at least in national security investigations, the FBI can leverage it solely with local field office approvals – FBI Headquarters and the Justice Department are not involved at all. The same ease of issuance applies to the accompanying non-disclosure orders.)

But those are simply the investigative equities, irrespective of a case’s individual circumstances, which govern how investigators and AUSAs view obtaining toll records. But the context does also matter, particularly in a case like ARCTIC FROST. In order to evaluate whether the subpoenas were proper as to the various legislators involved, it’s worth taking a brief detour to examine their role in the false elector plot. The plot, after all, was real. As a grand jury indictment in the District of Columbia noted: 

The Defendant [Donald Trump], his co-conspirators and their agents made knowingly false claims that there had been outcome-determinative fraud in the 2020 election. These prolific lies about election fraud included dozens of specific claims that there had been substantial fraud in certain states, such as that large numbers of dead, non-resident, non-citizen, or otherwise ineligible voters had cast ballots, or that voting machines had changed votes for the Defendant to votes for Biden. These claims were false, and the Defendant knew that they were false.

Critics of the ARCTIC FROST investigation like to point out that jurors in the District of Columbia generally lean left. But the state of Georgia obtained a similar multi-subject, 41 count indictment. The states of Wisconsin, Nevada, Arizona, and Michigan all sought and obtained criminal charging documents stemming from the conspiracy, too. A House of Representatives committee, which included Republican members found as follows:

…Donald Trump was no passive consumer of these lies. He actively propagated them. Time and again President Trump was informed that his election fraud claims were not true. He chose to spread them anyway. He did so even after they were legally tested and rejected in dozens of lawsuits. Not even the electoral college’s certification of former Vice President Biden’s victory on December 14, 2020, stopped the President from lying. Throughout, the Big Lie remained central to President Trump’s efforts to block the peaceful transfer of power on January 6, 2021.

Perhaps all these efforts and reports add up to some sort of devious plot to stymie Trump’s electoral efforts. Maybe actors from both state and federal governments, across both parties, consisting of career civil servants, political appointees, and elected officials conspired to thwart the MAGA-sympathetic will of the American polity.

Or, as an alternative, one can simply look at the evidentiary record, wield Occam’s razor, and conclude that the president and his allies may have engaged in activities that justified a criminal investigation.

Regardless of whether he actually believed it, Trump regularly proffered the former narratives to the public and to his political allies in personal conversations. In his efforts to spread these lies and hold on to his office, as the District of Columbia indictment notes in paragraphs 119 and 120, the president and one of his co-conspirators repeatedly contacted legislators amid the tumult of the Capitol breach – over the objections and pleading of White House counsel – urging them to not certify the electoral results. At least some of the legislators did not resist these entreaties. Sen. Hawley (R-Mo.), who urged on the protestors before fleeing at their approach, voted against the certification. So did Scott Perry. Many of the others whose toll records would eventually be seized had given earlier rhetorical support to Trump’s theories. As the ARCTIC FROST investigation attempted to discern who was involved in the criminal conspiracy to overturn the 2020 election results, it was only natural that at a certain point they sought to measure the level of culpability of those in the legislature who expressed a willingness to part in the scheme. It would have been investigative malpractice not to do so.

The fact that these subpoenas never became public until they were provided to Grassley is a feature, not a bug, of the FBI’s standard operating procedures. None of the legislators were eventually charged with a crime, and to publicly reveal that the Bureau examined their conduct, outside of the context of a formal charging document, is not the sort of thing that ought to happen in liberal democracy. This is why, for example, prior to Patel’s arrival, the FBI did not live tweet the progress of its cases.

But the days of the FBI trying to speak only through indictments are apparently over, and Patel’s willingness to endlessly provide piecemeal documents, without any explanation, annotation, or context to the Bureau’s most vituperative critics is just one more sign not that a page has merely been turned, but that it has been ripped out of the book entirely and burned to cinders. But in spite of the help that the FBI’s leadership provides him, Grassley has yet to actually show anything inappropriate, or even out of the ordinary. This is not oversight, or transparency, or whistleblowing; it is something else entirely. Postulating a theory of what exactly is happening with these document releases will be the subject of the final article in this series.