Whether Crossfire Hurricane was adequately predicated on 31 July 2016 is a red herring. The important point is that the FBI targeted Trump from the inception of the investigation.
This is the second in a series of posts analyzing the The 400+ page DOJ IG Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation (the “IG Report”)
In light of what happened in January, 2017 (see Post 1), when the FBI found that none of the allegations of the Steele Dossier were valid and that George Papadopoulos had not been referring to Russian hacking of the DNC in remarks he made in May, 2016, the question of whether the FBI had adequate predication to open the Crossfire Hurricane investigation on 31 July 2016 is a red herring. Still, it has been such a prominent issue, and because James Comey and the left are now claiming vindication on that issue alone, and because the failure to give Trump a defensive briefing goes to animus, let’s address it.
The IG Michael Horowitz, in Chapter III of the IG Report, addresses the FBI’s 31 July 2016 opening of the Crossfire Hurricane investigation targeting Donald Trump and his team. Horowitz states that the FBI opened Crossfire Hurricane solely on the basis of its knowledge of illegal Russian hacking and on a tip from a friendly foreign government (FFG) that George Papadopoulos, a Trump campaign adviser, had made a highly ambiguous statement that might have indicated that he knew about the Wikileaks leak of DNC e-mails in advance. The facts developed by Horowitz shows that the FBI leadership and the Crossfire Hurricane Team did not know about the Steele Reports until September 19, 2016. Horowitz judged that the investigation was properly predicated.
I disagree. The information Horowitz provides on these issues is incomplete and the tip the IG quotes from Downer was far too ambiguous to justify the FBI’s inferences. Moreover, as to the targeting of Trump specifically, Horowitz addresses the issue indirectly by examining the decision not to give Trump a defensive briefing. He does not make the logical inference from that decision, that Trump was targeted by the FBI.
Update: I should note that Asst. AG John Durham, the attorney tasked by AG Barr to conduct an independent investigation of the Russia Hoax, has likewise disagreed that the FBI investigation was properly predicated. Regardless, for the purpose of this post, we’ll deal just with the IG Reprort.
The following are the relevant facts according to the IG:
At p. 49-50 of the IG Report, Horowitz states simply that, as of 31 July 2016, the FBI was aware of problems with Russian attempts to interfere in the 2016 election, the most serious of which was believed to be the crime of “hacking” into DNC computers. Horowitz refers generally to the issue and accepts it as fact without addressing Crowdstrike.
The Steele Dossier
Starting at p. 84, the IG addresses the date on which the FBI leadership received the “Steele Dossier.” An oversea’s FBI Agent, eponymously referred to as Handler 1 in the IG Report, met with Christopher Steele on July 5, 2016, well before the opening of Crossfire Hurricane on the 31st, and received Steele first report 2016/080 — that Trump was a Russian spy and that Russia had the “pee tape” of Trump in Moscow by which they could blackmail him. Steele also told Handler 1 (p. 96) that he “was aware that “Democratic Party associates” were paying for Fusion GPS’s research, the “ultimate client” was the leadership of the Clinton presidential campaign, and “the candidate” was aware of Steele’s reporting.” Handler 1 ultimately forward Report 080 and several others he soon received from Steele to the New York Field Office (NYFO). On a 13 July 2016 phone call with the NYFO, Handling Agent 1 described “the contents of Report 80, identif[ied] [Steele’s employer as Glenn] Simpson as a client of a law firm, and include[d] the following: “law firm works for the Republican party or Hillary and will use [the information described in Report 80] at some point. ”
The FBI’s NYFO evaluated the information — including a particular discussion of Steele’s employer — but did not send the report on to FBI leadership in Washington. The IG does not explain why. That said, according to the IG (p. 99), it was a serendipitous tip by the Deputy Director of the FBI, Andrew McCabe, that led the Crossfire Hurricane team to the Steele Reports at NYFO. “On August 25, 2016, according to a Supervisory Special Agent 1 (SSA 1) who was assigned to the Crossfire Hurricane investigation, during a briefing for then Deputy Director Andrew McCabe on the investigation, McCabe asked SSA 1 to contact NYFO about information that potentially could assist the Crossfire Hurricane investigation.” The IG does not explain how McCabe knew about the Steele Dossier.
Knowledge of the Steele Dossier came to the attention of the Crossfire Hurricane team at a propitious moment in their investigation. They were investigating Trump, but according to the IG Report, had determined that they did not have probable cause to seek FISA warrants. The Steele Dossier changed that. The Steele Dossier provided the basis for the FISA warrant targeting Carter Page, and presumably all people within the “two hop” ambit of him. More on that in other posts.
On page 310, in a footnote, the IG states:
The only express direction we found that McCabe gave regarding the use of a CHS concerned a former FBI CHS, who contacted an FBI agent in an FBI field office in late July 2016 to report information from “a colleague who runs an investigative firm … hired by two entities (the Democratic National Committee [DNC] as well as another individual…[who was] not name[d]) to explore Donald Trump’s longstanding ties to Russian entities.” The former CHS also gave the FBI agent a list of “individuals and entities who have surfaced in [the investigative firm’s] examination,” which the former CHS described as “mostly public source material.” In mid-September 2016, McCabe told SSA 1 to instruct the FBI agent from the field office not to have any further contact with the former CHS, and not to accept any information regarding the Crossfire Hurricane investigation. McCabe told the OIG he did not remember giving those instructions, and could not tell us why he might have done so. We found no evidence that the FBI reopened the former CHS for the Crossfire Hurricane investigation, or tasked the former CHS in connection with the Crossfire Hurricane investigation.
This certainly sounds as if the Steele Dossier was coming to the FBI from a second source prior to the opening of the Crossfire Hurricane investigation. But the IG does not explain this information in detail, nor does he explain McCabe’s decision to shut down this source.
The Friendly Foreign Government Tip on Papadopoulos
At pg. 50-51, the IG states:
On July 26, 2016, 4 days after Wikileaks publicly released hacked emails from the DNC, the FFG official spoke with a U.S. government (USG) official in the European city about an “urgent matter” that required an in-person meeting. At the meeting, the FFG official informed the USG official of the meeting with Papadopoulos. The FFG official also provided . . . [redacted] . . . information from . . . [redacted] . . . FFG officials following . . . [redacted] . . . May 2016 meeting (hereinafter referred to as the FFG information). [Redacted] stated, in part, that Papadopoulos
suggested the Trump team had received some kind of suggestion from Russia that it could assist this process with the anonymous release of information during the campaign that would be damaging to Mrs. Clinton (and President Obama). It was unclear whether he or the Russians were referring to material acquired publicly of [sic] through other means. It was also unclear how Mr. Trump’s team reacted to the offer. We note the Trump team’s reaction could, in the end, have little bearing of what Russia decides to do, with or without Mr. Trump’s cooperation.
The “Assistant Director (AD) for CD [the FBI’s Counterintelligence Division], E.W. “Bill” Priestap,” was the “central figure” in deciding to open an investigation “to look into ‘whether someone associated with the Trump campaign may have accepted the reported offer from the Russians.'” Priestap had the “Section Chief of CD’s Counterespionage Section Peter Strzok” do the paperwork to open the investigation, then sent Strzok and others to interview the “FFG,” the person we know is an Austrialian Diplomat in Britain, Alexander Downer.
IG Horowitz does not provide us with the notes of Strzok’s meeting with Downer. Instead, he states (p. 59):
According to Strzok and SSA 1, during the interview they learned that Papadopoulos did not say that he had direct contact with the Russians; that while his statement did not include him, it did not exclude him either; and that Papadopoulos stated the Russians told “us.” Strzok and SSA 1 also said they learned that Papadopoulos did not specify any other individual who received the Russian suggestion. Strzok, the Intel Section Chief, the Supervisory Intelligence Analyst (Supervisory Intel Analyst), and Case Agent 2 told the OIG that, based on this information, the initial investigative objective of Crossfire Hurricane was to determine which individuals associated with the Trump campaign may have been in a position to have received the alleged offer of assistance from Russia.
Within days, the investigation had identified George Papadopoulos, Carter Page, Gen. Michael Flynn, and Paul Manafort as members of the Trump campaign — other than Trump himself — who had regular contacts with Russians and targeted them specifically on that basis — and indeed, that basis alone for Flynn. Moreover, there was a deliberate decision made by the FBI leadership not to give a defensive briefing about the investigation to Donald Trump or anyone else in the campaign. According to the IG, the person who made that decision was Priestap.
Priestap told the OIG that before arriving at a final decision, he considered whether to provide a “defensive briefing” to any member of the Trump campaign in lieu of opening an investigation. According to Priestap, defensive briefings occur when U.S. government or corporate officials are being targeted by a foreign adversary and the FBI determines the officials should be alerted to the potential threat. Priestap did not recall who first raised the issue of defensive briefings, but said he discussed the subject collaboratively with other FBI officials. Priestap told us that he ultimately decided not to conduct defensive briefings.
The IG then quotes Priestap:
While the Counterintelligence Division does regularly provide defensive briefings to U.S. government officials or possible soon to be officials, in my experience, we do this when there is no indication, whatsoever, that the person to whom we would brief could be working with the relevant foreign adversary. In other words, we provide defensive briefings when we obtain information indicating a foreign adversary is trying or will try to influence a specific U.S. person, and when there is no indication that the specific U.S. person could be working with the adversary . . .
The IG talks generally about Priestap having “discussions” about the defensive briefing with others, but does not name who. We do not know if Priestap discussed the issue with Comey, McCabe, or anyone at DOJ, such as Sally Yates.
The Applicable Law:
The standard applied by the IG to the FBI’s decision to open the Crossfire Hurricane investigation was (p. 19 and at FN 41) that the FBI can legitimately open up an investigation on a mere hunch. The Attorney General further imposes on the FBI the standard that they must have a reasonable suspicion of a crime and that the person to be investigated was involved to do a full investigation. As Andrew McCarthy states:
First, regarding the quantum of fact-based suspicion necessary before an investigation may properly be opened, the FBI sets the bar so low it is illusory. Essentially, a hunch will do for purposes of opening a preliminary investigation. Something only slightly less nebulous, such as a suspicion that can be articulated reasonably (though not convincingly), will do for a full-blown investigation.
The IG is not there to tell us whether a decision was appropriate, much less prudent, or at least carefully considered. If the predication is adequate, then the IG tells us he cannot second-guess the investigation’s commencement. As a result, the IG may not (or at least does not) tell us the only thing that matters: Was it appropriate under the circumstances to open an investigation of the Trump campaign?
Additionally, there is no law governing when the FBI is required to give politicians a defensive briefing that their campaign is being targeted. That said, the custom and practice has always been to provide a defensive briefing to politicians who are being targeted by foreign intelligence.
If we knew all that the FBI knew on 31 July 2016, we would be able to definitively answer whether Crossfire Hurricane was properly predicate. But the IG gives only partial information before announcing his conclusion that on 31 July, the FBI had sufficient predication to open Crossfire Hurricane.
1. As to a reasonable suspicion that the FBI knew that the Russians had hacked the DNC and was likely behind the Wikileaks release of DNC emails, Horowitz is conclusory and never mentions Crowdstrike, nor whether the FBI’s investigation had developed any of the supposed evidence of criminal acts on their own, independent of the DNC’s claim that they were hacked by Russians. We know from former FBI Director James Comey’s testimony before Congress, as well as subsequent court filings by the FBI, that the DNC had given the FBI a “Draft” report by an entity they employed, Crowdstrike, and that the FBI accepted it as definitive without conducting their own examination of the DNC servers involved.
2. It is difficult to believe that it took over two months, from 5 July 2016 to 19 September 2016, for the information that Steele provided to Handler 1 to make it to the Washington, DC leadership of the FBI. The IG does not adequately explain why the New York Field Office sat on the report for over a month without passing it onto the DC leadership, nor does the IG explain how Deputy Director McCabe knew to direct the Crossfire Hurricane team to contact the NYFO in August to have them transfer the information.
3. The IG does not give us enough information to evaluate FN 461 and what information McCabe had from Steele in late July.
4. The IG does not provide us enough information to evaluate whether the FFG tip provided to the FBI on 28 July 2016 and then Strzok’s meeting with Downer a few days later was sufficient to provide a reasonable suspicion that the Trump team was conspiring with Russia. The IG provides only selective quotes from the FFG’s initial communication to the FBI and from Strzok’s meeting with Downer.
5. Based on the information the IG provides, to call the FFG tip a flimsy pretext on which to open an investigation targeting Donald Trump for conspiring with Russia is to be far too kind to the FBI. Does saying that someone told Papadopoulos that Russia might release some information, perhaps publicly acquired, that might harm Hillary Clinton lead to a reasonable suspicion that Trump and his team were in on the hack of DNC emails and illegally conspiring with Russia? That is the Evil-Knievel-jumps-the-Grand-Canyon leap of logic.
Irrespective of all of the above, the biggest takeaway from all of these facts presented by the IG doesn’t concern the pretext for opening the case. That is a red herring. But the decision to target Donald Trump as part of the investigation and to not give him a defensive briefing is important in light of subsequent events. Priestap may have made that decision, but no one above him overruled him. And the only reasonable inference from that decision is that the FBI was targeting Donald Trump himself without any factual justification whatsoever — remember, the FBI claims not to have had the Steele Reports yet. That shows animus, and such animus is of direct concern when evaluating what happened with the investigation in January, 2017 and thereafter (see Post 1), when the entire basis for the case collapsed and it turned into an attempted coup.