Published by The Lawfare Institute
in Cooperation With
What is one to make of the apparent inability of press and government alike to verify the allegations in the Trump dossier combined with the cache of documents’ apparent staying power?
The unverified allegations against Donald Trump are not just salacious, they are specific. These are facts which should be verifiable as either true or false. Did a meeting take place between the people described, at the place and time described? Even if some specific details are wrong—as is often the case in HUMINT—are the essential allegations, or some of them anyway, accurate?
If you are finding Lawfare useful in these times, please consider making a contribution to support what we do.
We now know that the FBI has been looking into the material in these documents for approximately seven months; a large number of reporters have been diligently working to verify leads for nearly as long. What does it mean that, currently and at the time of the briefings to the President and President-elect, no specific allegations have been verified?
On one hand, the fact that no specifics appear to have been validated should give everyone a lot of pause. If someone puts a lot of falsifiable facts on the table and large numbers of people spend large amounts of time trying to corroborate them and cannot do so, that generally tends to indicate that they are not true.
And yet, the intelligence community briefed the President. It appears the FBI is continuing its investigation. DNI James Clapper issued a statement yesterday, reading in part:
The IC has not made any judgment that the information in this document is reliable, and we did not rely upon it in any way for our conclusions. However, part of our obligation is to ensure that policymakers are provided with the fullest possible picture of any matters that might affect national security.
This indicates that while the documents have not been validated, the government continues to take them seriously for some reason.
The intelligence community simply does not concern itself with every crazy allegation against a sitting or incoming President that might be circulating or out there in the ether. Prior to President Obama’s inauguration, there were all kinds of claims among his critics about his being a Muslim born in Kenya, and anointed with oil by Saul Alinsky. Needless to say, the heads of the intelligence community did not feel compelled to alert either President Bush or President-elect Obama about these matters. We suspect Obama probably also never got briefed by the intelligence community about Donald Trump’s rumor-mongering about his birth certificate. And certainly, DNI Clapper would not have briefed Hillary Clinton, had she won, on the weird allegations related to Pizzagate.
Vice President Joe Biden noted the significance of the fact of the FBI investigation. Speaking to Politico, the Vice President seemed to downplay the significance of the dossier itself and noted that, for anyone who has been in politics as long as he had, unspecific allegations about someone’s “illegal conduct or encounters with women” were familiar. But he said “it surprised me that it made it to the point where the FBI thought they had to pursue it.”
Biden is right that these kind of rumors, even specific rumors about Russia kompromat on political figures, are not uncommon and therefore not all that interesting, let alone credible, on their own. But FBI investigations of such matters, especially ones that persist beyond cursory initial inquiry, are highly unusual.
There is, in short, something significant about the fact that these allegations, given that they have not been validated, are not part of the giant compost heap of things the intelligence community simply ignores. And there is something very significant about the fact that the intelligence chiefs elevated it to the level of presidential eyes. Why hasn’t the government, after some months of investigation, affirmatively put the questions to rest by concluding the documents are untrue?
There are other tea leaves in Clapper’s statement: He could have, but did not, say that the IC has determined that documents lack credibility. Instead, he said the “IC has not made any judgment” as to reliability. Paired with his statement that these are matters which “might affect national security,” Clapper seems to be carefully saying that the IC still believes these allegations may, in part, prove to be true, or at least, may be closely related to allegations that are true. They just don’t know yet, even after seven months of inquiry, so they are neither validating nor discarding.
Some commentators have noted that the sole intention in briefing Trump and Obama on this material may have been to keep the President and President-elect apprised on matters which might emerge in the press. But that does not account for the full story. The intelligence community isn’t a press monitoring outfit whose job it is to apprise the president of potentially damaging stuff that may show up in the press without regard for its truth. The job of the intelligence community is to inform the president on matters related to national security; a bunch of lies floating around Washington that might trigger a politically damaging press report does not trigger IC reporting to the President.
Furthermore, the intelligence community and FBI both appear to take seriously the credibility of the dossier’s author, Christopher Steele. That does not mean that they believe everything Steele says in the documents—indeed, often even the best intelligence is some mixture of rumor, truth, and fact—only that he is a person with legitimate credentials on the matters in question and that he has done reliable work in the past. The UK intelligence community, in which Steele served, also shares this view calling him “very credible” and lauding him as “a sober, cautious and meticulous professional with a formidable record.”
Part of the explanation may also be that the salacious allegations and the reports of collusion between the Trump campaign and Russian intelligence do not take place in a vacuum. They take place amidst the background of a great deal of public evidence of ties between the Trump campaign and Russian actors. Long prior to the election, remember, media outlets reported on links between Trump campaign manager Paul Manafort and advisor Carter Page and questionable actors in and around Russia. Those reports led Manafort to resign as campaign manager and for the Trump team to disavow contact with Carter Page. Incoming National Security Advisor Michael Flynn was photographed at an RT dinner in Moscow sitting at the same table as Vladimir Putin. Trump confident Roger Stone claimed ties to Wikileaks and Julian Assange, both of which are suspected of ties to Russia. In fact, the degree of coziness between the Trump team and Russia prompted us to write a somewhat tongue-in-cheek legal analysis on whether Trump qualifies as a Russian agent. So these reports are, at the very least, consistent in key thematic respects with verified public reporting.
Significantly, the Guardian and the BBC are now both reporting that the FBI obtained a FISA warrant investigating ties between Trump associates and Russia. Exactly what, and whom, this warrant covered is still very fuzzy. The Guardian suggested the target was “four members of the Trump team suspected of irregular contacts with Russian officials,” though that was later narrowed. The BBC, meanwhile, reports that: “Neither Mr. Trump nor his associates are named in the Fisa order” which covered “Russian banks.”
Regardless of the specific targets, if reports that a FISA order was obtained are accurate, that means that the FBI has developed a lot more evidence than just this private dossier on the point. To obtain a FISA warrant, the government must show probable cause that the entities in question are agents of a foreign power (the precise showing is different depending on whether US persons are involved). The dossier document alone does not remotely suffice for that showing; it is, after all, nothing more than the writings of a single person who does not work for the intelligence community reporting on the unverified comments of anonymous sources. On this point, note Clapper’s careful insistence that the intelligence community “did not rely upon [the dossier] in any way for our conclusions.” So if there is, or was, FISA surveillance, in other words, the evidence supporting it lies elsewhere.
All of this compels us to make a number of observations. First and most important, we should continue to reserve judgment.
Second, this is a reminder of the integrity with which the press has conducted itself on this issue. Many journalists had possession of a bombshell document for weeks. And while many investigated the allegations, none ran with it until there was something to report—namely, the fact the President and President-elect had been briefed, which was undoubtedly news. At a time when the press is often criticized for running with vapor, it deserves credit on this point.
Finally, the current state of the evidence makes a powerful argument for a serious public inquiry into this matter. There is no real reason why it needs to be an independent commission, modeled on the 9/11 Commission. The matter could be investigated by existing congressional committees. However, there is a good argument for the formation of a Select Committee, as Senator John McCain has suggested. The issues here cut across the jurisdiction of a number of different committees and do not fit neatly within any committee’s specific jurisdiction. A Select Committee would reflect the importance of the issue and, rightly constituted, would be just as powerful as an independent commission, with subpoena power and the ability to review highly classified materials. This route seems the most expeditious one to a serious vetting of, as Trump himself might put it, “what’s going on."