Video and Liveblog of HPSCI Hearing on Russian Active Measures Investigation

Quinta Jurecic, Benjamin Wittes, Susan Hennessey
Monday, March 20, 2017, 1:00 AM

At 10am this morning, the House Intelligence Committee will hold a much-anticipated open hearing on Russian active measures during the 2016 campaign. FBI Director James Comey and NSA Director Admiral Mike Rogers will testify.

Video of the hearing is available here and below.

Published by The Lawfare Institute
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At 10am this morning, the House Intelligence Committee will hold a much-anticipated open hearing on Russian active measures during the 2016 campaign. FBI Director James Comey and NSA Director Admiral Mike Rogers will testify.

Video of the hearing is available here and below. We will be liveblogging in this post.

Note: You must refresh the page in order for the liveblog to update.

12:45 pm: The President of the United States has responded in a series of tweets:

12:01 pm: We have reached the point of diminishing marginal returns with this liveblog, the news content of the hearing having presumably all come out by now. So we're going to curtail the live component here. We will be editing the audio of the hearing and releasing it as an emergency version of the Lawfare Podcast. We will update this post if anything of importance happens from this point further.

11:54 am: Nunes turns things over to Rep. Conaway, who runs through the conclusions presented in the declassified intelligence report on Russian election interference. Both Rogers and Comey stand by the report's conclusions that the Russian objective was to hurt American democracy, hurt Clinton, and help Trump. Conaway doesn't like the implication that the Russian pro-Trump effort flowed logically from Putin's distaste for Clinton. There's an extended back-and-forth about the timing the development of these conclusions. It's not at all clear what Conaway's point is here.

11:50 am: Back to Nunes, who asks about . . . Hillary Clinton.

He wants to know if Comey will take seriously and add to his investigation any allegations about Clinton and the Clinton Foundation and any Russian efforts to infiltrate them should such allegations arise. Comey says the FBI will process any information that comes in.

11:48 am: Rep. Sewell asks both Comey and Rogers if they would be concerned if an employee had a private meeting with a Russian government officer and didn't disclose it. They both say yes, and emphasize that they would expect that agent to report the meeting. They both refuse to discuss her attempt to apply that principle to Flynn.

11:46 am: Himes turns things over to Rep. Sewell who asks whether the FBI generally assumes that Russian and other ambassadors are collecting intelligence on Americans. Comey refuses to answer in an open session.

11:45 am: Himes asks if it is true that Comey has been asked by the current Ukrainian government to provide assistance with respect to a Ukrainian corruption investigation involving Paul Manafort. Comey says he can't comment.

11:42 am: Himes notes the change in the Republican platform regarding the American response to the Russian invasion and annexation of Crimea, suggesting that Manafort was "pulling the strings." Himes suggests that the line between private Russian citizens and Russian officials is blurred; Comey agrees that this is true. Himes appears to be trying to link Manafort's activities in Ukraine to Putin through a "close-knit cabal" of oligarchs.

Himes really needs to work on his Slavic pronunciation. His Ukrainian and Russian both stink.

11:37 am: Schiff hands the stage to Rep. Himes, who says that Trump attacks everyone but that Russia is "inoculated from any form of presidential attack no matter what the behavior." Himes then asks about the Foreign Agents Registration Act. Himes runs through the purpose of FARA as described by the National Security Division at DOJ. He asks if willful violation or failure to register under fara is, under some circumstances, a crime that could lead to counterintel concerns. Comey says that is is. Here is the operative law. Himes then describes Paul Manafort's activities working for former Ukrainian president Viktor Yanukovych, struggling a little with the pronunciation. Himes asks if Manafort ever registered under FARA. Comey refuses to comment on any individual. He says he "doesn't want to start down that road." In September, DOJ's Inspector General released a report on the DOJ’s Enforcement of the Foreign Agents Registration Act. The report criticized uneven enforcement and broad confusion surrounding FARA.

11:33 am: Gowdy is done and Schiff is back on Roger Stone, which subject Comey is once again refuses to discuss. Schiff says he's going to ask the questions anyway to make sure Comey is aware of the information. Note: it's a pretty safe bet that he is. But consider this a congressional referral by way of questioning. Schiff runs through the details of Stone's communications with Guccifer 2 and asks if Comey is aware of Stone's tweeting that Julian Assange is his hero days before Wikileaks released the Podesta emails. Comey refuses to answer.

11:32 am: One point that has not been made regarding leaks prosecution is that the agency which owns the information makes the referral to the DOJ for a "crimes" investigation. These referrals don't come from Congress and leak investigations are not ordinarily undertaken sua sponte by the FBI. One reason for Comey's extreme caution here: Leak investigations only occur where the information is accurate (i.e. real classified information) and therefore acknowledging the fact of an investigation confirms the underlying classified information.

11:25 am: Gowdy is now going through a list of former Obama administration officials who he thinks may have leaked the matter and asking Comey whether they would have had access to the unmasked name. He asks Comey to review how a leak investigation operates. He makes thinly-veiled allegations against these former Obama administration officials by name. In essence, a member of Congress is intimating that particular Americans may have committed serious crimes. Comey confirms that Susan Rice, Loretta Lynch, Ben Rhodes, Sally Yates by the nature of their positions would have had access to the information. But he does not confirm that investigation is taking place, as doing so would confirm that the information is classified. Gowdy does not like this answer. He wants Comey to confirm the leak investigation, as well as the underlying counterintelligence investigation.

11:21 am: Gowdy wants to know the number of people who have the ability to unmask a US person's name as a "roadmap" to whom might have leaked the Flynn intercepts. Comey contends the culture is more important than the wrong number. But Gowdy is missing a basic point here. Whoever has the authority to unmask the US person, the universe of possible leakers is the universe of people who received the transcript, not the universe of people who could have unmasked Flynn's identity. Comey says the FBI and NSA is "obsessive" about FISA and a culture of compliance.

11:18 am: Back to Gowdy, who's back on the subject of leaks. He moves into the thorny question of whether the criminal law has any kind of exception for reporters, which Comey does his best to stay away from. Gowdy raises the question of whether a reporter could be held criminally liable for publishing classified information. Comey seems visibly uncomfortable at the suggestion, but acknowledges that DOJ has "struggled" with the question. There are strong norms against these kinds of prosecutions of members of the press.

11:17 am: Rep. Sewell asks whether Comey can discuss the "process" of a counterintelligence investigation. This would be the "methods" part of "sources and methods" and Comey unsurpringly doesn't want to do that. Comey declines to speak on any subject related to the investigation. Comey says he is only willing to speak very generally about how such investigations are conducted. He says they use people and tools and then sheepishly acknowledges that probably isn't very informative.

11:15 am: Schiff turns matters over to Rep. Himes, who is trying to probe Comey on "coordination." Comey reiterates that the investigation includes whether there is "coordination" between the Trump campaign and its personnel and Russians.

11:13 am: Schiff asks Comey about Roger Stone. Comey sees where Schiff is heading and says he cannot comment. Comey acknowledges he has seen "media reports" regarding Stone's purported contact with Guccifer 2.0.

11:09 am: First question on GCHQ comes from Schiff. Rogers says that asking GCHQ to wiretap Trump would be "expressly against the Five Eyes agreement that has been in case for decades." He has no evidence that anyone made such a request. Agrees with GCHQ statement that it's "utter nonsense." Says the US-UK relationship is strong enough that it will weather the dispute, but agrees with Schiff that it's "not helpful." A similar exchange takes place with respect to Germany and Angela Merkel.

11:08 am: Schiff takes one for the team by committing himself to reading out Trump's tweets in full deadpan and asking Comey about them individually. No president could unilaterally order a wiretap of anyone, Comey says. Asked if he has engaged in McCarthyism by Schiff, Comey responds, "I try very hard not to engage in any 'isms' of any kind, including McCarthyism." Schiff asks Director Comey to refresh our recollections about Watergate. Schiff draws parallel between Watergate break in of DNC and the hacking of the DNC in 2016.

11:06 am: Can we just take a moment to note that James Comey, Director of the FBI, just had to say "with respect to the President's tweets" in congressional testimony. What a world.

11:03 am: Comey says he has "no information" that supports the President's tweets and neither does the Justice Department.

11:02 am: FULL TEXT OF COMEY'S OPENING STATEMENT: ""Mr. Chairman, ranking Member Schiff, members of the Committee, thank you for including me in today’s hearing. I’m honored to be here representing the people of the FBI. I hope we have shown you through our actions and our words how much we at the FBI value your oversight of our work, and how much we respect your responsibility to investigate those things which are important to the American people. Thank you for showing that both are being taken very seriously. As you know our practice is not to confirm the existence of ongoing investigations, especially those investigations that involve classified matters. But, in unusual circumstances, where it is in the public interest, it may be appropriate to do so, as Justice Department policies recognize. This is one of those circumstances. I have been authorized by the Department of Justice to confirm, that the FBI, as part of our counterintelligence mission, is investigating, the Russian government’s efforts to interfere in the 2016 presidential election. And that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government, and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed. Because it is an open, ongoing investigation, and is classified, I cannot say more about what we are doing, and who’s conduct we are examining. At the request of congressional leaders, we have taken the extraordinary step, in coordination with the Department of Justice, of briefing this Congress’s leaders, including the leaders of this committee in a classified setting in detail about the investigation. But I can’t go into those details here. I know that is extremely frustrating to some folks. I hope you and the American people can understand, the FBI is very careful in how we handle information about our cases, and about the people we are investigating. We are also very careful about how we handle information that may be of interest to our foreign adversaries. Both of those interests are at issue in a counterintelligence investigation. Please don’t draw any conclusions from the fact that I may not be able to comment on certain topics. I know speculating is part of human nature. But it really isn’t fair to draw conclusions simply because I say “I can’t comment.” Some folks may want to make comparisons to past instances where the Department of Justice and the FBI have spoken about the details of some investigations. But please keep in mind that those involved the details of completed investigations. Our ability to share details with the Congress and with the American people is limited when those investigations are still open. Which I hope makes sense. We need to protect people’s privacy. We need to make sure we don’t give other people clues as to where we’re going. We need to make sure we don’t give information to our foreign adversaries about what we know or don’t know. We just cannot do our work well or fairly if we start talking about it while we’re doing it. So we will try very, very hard to avoid that, as we always do. This work is very complex, and there is no way for me to give you a timetable as to when it will be done. We approach this work in an open-minded and independent way, and our expert investigators will conclude that work as quickly as they can, but they will always do it well no matter how long that takes. I can promise you we will follow the facts wherever they lead. And I want to underscore something my friend Mike Rogers said: Leaks of classified information are serious, serious federal crimes for a reason. They should be investigated and where possible prosecuted in a way that reflects that seriousness so that people understand that it simply cannot be tolerated. And I look forward to taking your questions."

10:58 am: Gowdy elicits more anti-leak comments from Comey. He's specifically focused on the Flynn leaks to Washington Post and New York Times. Comey refuses to comment on the specific articles but once again says leaks are a serious crime.

10:56 am: Rooney finishes up and turns things over to Rep. Trey Gowdy. Gowdy immediately jumps in on leaks as well. Gowdy discusses the value of FISA, and as with Rooney, suggests that leaks jeopardizes the programs. The Republicans, thus far, care far more about the leaks about General Flynn's calls than about the underlying substance of those communications.

10:54 am: Rogers corrects Rooney on whether it's 702 at issue. Rooney seems undeterred and suggests that the leaking of Flynn's information may put 702 reauthorization in danger.

10:51 am: Rep. Rooney asks Rogers whether leaks threaten national security by threatening reauthorization of 702 and other harms national security. Rogers responds, "Yes, sir." Republicans are highly focused on leaks. And they have receptive audiences in both Rogers and Comey. Ironically, though, while Rooney references FISA Section 702, the collection against the Russian Ambassador was almost certainly not 702. That type of collection is more likely under Title I of FISA.

10:50 am: Rogers acknowledges that the 20 officials who can unmask are only in NSA and about NSA reporting. There are others elsewhere.

10:48 am: Rogers explains the process for referring possible evidence of criminal activity to the FBI. Rooney tries to get Rogers to discuss hypothetical applications. Rogers refuses.

10:45 am: Rogers testifies that there 20 officials at NSA who have the authority to unmask US persons in reporting. There is specific training and controls in place for that. He outlines the "need to know" element of access to unmasked US person information. This "need to know" element is true for classified information generally. Having a clearance is not sufficient; an individual has to have a need to know the information in order to do his or her job. This requirement also applied to Congress. Members of Congress don't have to get a clearance; they are presumptive trustworthy by virtue of their election. But they still have to have a need to know in order to see particular classified information.

Rooney seems to be trying to get at whether the unmasking of Flynn's conversation with Kislyak was appropriate—a matter distinct from the illegal leaking of that information.

10:42 am: Nunes turns the questioning over to Rep. Rooney of Florida, who outlines the legal authorities of NSA surveillance, in an effort to reassure the American people. The man sitting behind Admiral Rogers, to the left, is NSA General Counsel Glenn Gerstell. Rooney walks Rogers through the authorities, focusing on "incidental collection" and the safeguards applied to incidentally collected US person information. This may seem in the weeds, but it is critical to this investigation. Rogers is explaining the very broad definition of US person, which is much broader than just an American citizen.

10:39 am: Nunes elicits from Comey a reiteration of the fact that classified leaks of FISA material is criminal.

10:37 am: Nunes begins the questioning by eliciting from both Rogers and Comey the statement that there is no indication of any votes changed or problems with voting integrity as a result of Russian hacking. This is a critical point about legitimacy: the American people did in fact elect Donald Trump president.

10:33 am: Comey bigs with a big deal announcement: Comey acknowledges that the FBI has a counterintelligence investigation, including the question of links between the Trump campaign and the Russian government. Will not give any details. Comey says the investigation is "open" and "ongoing" and therefore will not say who is being investigated or what steps the FBI is taking. This is "the way it has to be." Comey asks the committee (and the public) to not draw conclusions from the fact that he cannot comment. Comey assures the Committee that his past comments on the Clinton investigation were regarding a closed investigation. As this is an open investigation, the situation is different. He says there's no way to give a timetable. He denounces leaks of classified information "serious serious federal crimes."

10:32 am: Rogers wraps up and turns it over to Comey.

10:29 am: Rogers reassures HPSCI that NSA has strict procedures to protect US person information, and then goes on a detour to emphasize the importance of 702 and 12333. Rogers is noting the intelligence community takes the obligation to protect US persons information seriously. This is a reference to the leaks regarding General Flynn's phone calls. David Kris explained how that information is handled under minimization rules here.

10:27 am: Schiff wraps up by acknowledging that he does not know whether the committee can really undertaken a credible investigation, considering the politics and stakes. But he urges his colleagues to "try" as a matter of public service. . . And it's Admiral Rogers time!

The committee is cleverly building suspense by having Rogers testify before Comey.

He begins by standing by the IC's previous conclusions on Russian intervention in election. Rogers says that he'll speak only about information that is already public, including the declassified report on election interference. Rogers notes that NSA has been providing information to the committee in its investigation. He says unequivocally that the intelligence community "stands by" its assessment, with the same degree of confidence. That is a rebuke to President Trump, who has publicly questioned the work.

10:24 am: Schiff is noting that his committee and staff is under-resourced to undertake this investigation. He asks for Comey's cooperation. Schiff endorses the formation of a bipartisan commission. We wrote about the advantages of a Select Committee model here.

10:23 am: Schiff is giving a lot of weight to Trump's apparently off-the-cuff statements here—"I love Wikileaks," praising Flynn after firing him. He's making the point that there's a great deal of smoke here, and while it's "possible" it's all coincidence, it's not certain. "Is it possible that all of these events and reports are completely unrelated? Yes, it is possible. But it is also possible, maybe more than possible, that they are not coincidental, not disconnected and not unrelated. We simply don't know. And we owe it to the country to find out."

10:19 am: Schiff cites Trump's campaign-trail statement that, "I love Wikileaks" and the boasts of Roger Stone and the change in the GOP platform vis a vis Ukraine.

10:15 am: Schiff seems to be acknowledging here that Comey may not be able to confirm the existence of an investigation at all. Schiff is now running through details of the Steele dossier in an effort to frame the question of "whether the active measures campaign was meant to gather intel or had a great purpose. What was happening in July-August last year, and were US persons involved?"

10:13 am: Schiff says there is no evidence of hacking of Trump Tower and calls the allegation "slanderous."

10:09 am: Nunes statement focused on Russian bad acts, Obama administration naivete about Putin, and leaks. Yields to Adam Schiff for 15 minute opening statement.

10:08 am: The first reference to tapping Trump's wires comes from Devin Nunes but is brief and passing.

10:01 am: Wherein we note for the record that Jim Comey is really really tall and the hearing comes to order.

Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.
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.
Susan Hennessey was the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She was a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.

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