On What Grounds Can the FBI Investigate the President as a Counterintelligence Threat?

The New York Times reported on Jan. 11 that the FBI “began investigating whether President Trump had been working on behalf of Russia against American interests” soon after Trump fired FBI Director James Comey in May 2017. In other words, the FBI opened a counterintelligence investigation on the president.

The Times reports that my friend and former colleague, former FBI General Counsel James Baker, said during testimony to House investigators in October 2018 that “Not only would [firing Comey] 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.” The Times paraphrases Baker’s testimony as follows: “If the president had fired Mr. Comey to stop the Russia investigation, the action would have been a national security issue because it naturally would have hurt the bureau’s effort to learn how Moscow interfered in the 2016 election and whether any Americans were involved.”

If the story is accurate, then what the FBI did was unprecedented and possibly—I emphasize possibly, since many relevant facts are not included in the Times reporting—an overstep, or at least imprudent. The reason the FBI step might have been imprudent is that it was premised on an inversion of the normal assumptions of Article II of the Constitution.

The FBI defines its counterintelligence responsibilities as follows: “As the country’s lead counterintelligence agency, the FBI is responsible for detecting and lawfully countering actions of foreign intelligence services and organizations that employ human and technical means to gather information about the U.S. that adversely affects our national interests’” (emphasis added). The FBI sees its counterintelligence mission as “identifying and neutralizing ongoing national security threats” (emphasis added). And indeed, this seems to be the FBI’s theory, according to the Times: The FBI opened a counterintelligence investigation of the president because, after Trump fired Comey, the FBI feared that Trump was a threat to the national security interests of the United States.

There is an unobjectionable sense in which the president can obviously be caught up in a counterintelligence investigation. We have known that Trump has been at least peripherally connected to one ever since Comey’s March 20, 2017 testimony, and especially since Deputy Attorney General Rod Rosenstein announced that he was appointing Robert Mueller to conduct a counterintelligence investigation concerning:

(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

As David Kris notes, we have long understood that this counterintelligence investigation would sweep up Trump’s relationship with Russia, and might include the question whether Trump might be compromised by the Russians. But the Times suggests that the FBI—at least after Comey was fired—took this investigation in a different direction, at least as a formal matter, based on the premise that the president was a threat to the national security interests of the United States.

It is not unusual for a president to make controversial policy decisions that could, in some quarters, be viewed as causing harm to the national security interests of the United States. For example, many saw George W. Bush’s decisions in the war on terrorism, or Barack Obama’s rapprochement with Iran and Cuba, as harming U.S. national security. Many believe that most of Trump’s foreign policy constitutes a similar threat—his attacks on allies and international institutions, his lies and erratic behavior, and the like. But the FBI obviously would not open a counterintelligence investigation for these matters.

They would not do so because these actions—and indeed the very determination of the U.S. interest in the conduct of U.S. foreign policy—are presidential prerogatives. The Supreme Court has often affirmed, many times since United States v. Curtiss-Wright Export Corp., that it is the president himself, not the executive branch, who possesses “the very delicate, plenary and exclusive power … as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress.” Moreover, the president has plenary control within the executive branch of the intelligence power and classified information, which is defined, by the president, in terms of harm to national security. In short, the president is the person constitutionally charged with determining what constitutes the national security interest and national security threats for the executive branch, which is where the FBI is located.

Because the president determines the U.S. national security interest and threats against it, at least for the executive branch, there is an argument that it makes no sense for the FBI to open a counterintelligence case against the president premised on his being a threat to the national security. The president defines what a national security threat is, and thus any action by him cannot be such a threat, at least not for purposes of opening a counterintelligence investigation.

On this view of the presidency, the perverse and very controversial steps Trump has taken toward Russia as president—his disclosure of classified information to the Russian ambassador in the Oval Office; his firing of Comey because of the Russia investigation; his persistent refusal to acknowledge what his director of national intelligence described as Russia’s “ongoing, pervasive efforts to undermine our democracy”; and more—are all part of his ultimate discretion to conduct foreign policy and U.S. intelligence operations. Those actions, therefore, cannot pose a threat to a national security as a justification for a counterintelligence investigation. That may sound like an extreme conclusion, but it might follow from Article II, and I think (as I explain below) that not accepting this conclusion leads to equally if not more problematic consequences.

But first: This analysis raises the hard question of what executive branch officials are supposed to do if they have evidentiary reasons to believe the president of the United States is a Manchurian candidate in the sense of being an actual agent of a foreign power seeking to undermine the U.S. government. That is what a lot of Americans think of Trump, and it appears to be what the FBI suspected. Let’s stipulate for purposes of argument that Putin has compromising information on Trump, and that the FBI has Trump on tape unambiguously pledging fealty to Putin and promising to serve as his agent in carrying out a number of concrete orders from the Russian president to damage U.S. intelligence operations (for example, by exposing U.S. spies and U.S. intelligence operations). In this situation (as Chuck Rosenberg asked me in a great episode of the Lawfare Podcast), could the FBI seek a FISA warrant premised on the claim that the president was an agent of a foreign power?