Law & the Courts

No, Trump Isn’t Under Criminal Investigation by the FBI

FBI director James Comey testifies on Capitol Hill, March 20, 2017. (Reuters photo: Joshua Roberts)
The bureau is conducting a counterintelligence investigation, which is a whole different beast.

There is no ongoing criminal investigation of President Trump or his campaign. I realize that may not be what you expect to hear, if you’re only casually consuming the news. But it’s what FBI director Jim Comey told Congress, and no available evidence contradicts it.

Democrats are desperate to draw a parallel between Comey’s testimony Monday before the House Intelligence Committee — about an ongoing FBI investigation that includes any connections between the Trump 2016 campaign and Russian efforts to influence the 2016 election — and Comey’s statements in July and October 2016 about the criminal investigation of Hillary Clinton’s private e-mail server. But if you listen to what Comey actually told Congress under oath, you get a very different picture. Let’s quote the key portion:

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 whose 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’ 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. [Emphasis added.]

In short, the investigation Comey references is not a criminal investigation; it’s a counterintelligence investigation, and crimes will be investigated or charged only if they happen to be uncovered in the process.

Where does that leave us?

First, it means that nobody determined that there was a basis to think a crime may have been committed — or that investigators were likely to uncover a crime — before starting an investigation. That’s not what people usually assume when they hear “FBI investigation.”

Second, it means that the investigation has no target and no standards, and that there is no expectation it will have a public endpoint. Criminal investigations may be broad-ranging, but they are ultimately creatures of law: A crime may have been committed; investigators look to build an evidence-based case that one was, and by whom. There are witnesses, testimony, legal elements to satisfy, and often a statute of limitations that argues for wrapping things up. At the end, there’s a public accounting: an indictment and a trial or plea. If the investigation becomes publicly known, the FBI and DOJ may break from their usual practice in confidential grand-jury investigations and announce that it’s over. A counterintelligence investigation, on the other hand, seeks only information, which may be developed over a lengthy period of time, and because it carries no possibility of charges, it can never clear anyone of wrongdoing.

Third, because they have no expected public endpoint, counterintelligence investigations can drag on more or less indefinitely, for years and years, without witnesses being called or a case being built. This Q&A with a couple of the committee’s Democrats is illustrative:

HIMES: This committee, of course, is engaged in investigation about links, as you said, between the Trump campaign and the Russians, should there be any possible collusion. We’ve had a number of statements very early in the investigation that there was no evidence of collusion. This is still very early in our investigation, is it fair to say that you’re still relatively early in your investigation?

COMEY: It’s hard to say because I don’t how much longer it will take. But we’ve been doing this — this investigation began in late July, so for counterintelligence investigation that’s a fairly short period of time.

HIMES: So, you used the word coordination which to me suggests that you are in fact investigating whether there was coordination between U.S. persons and the Russians. Is it fair for me to assume that we shouldn’t simply dismiss the possibility that there was coordination or collusion between the Russian efforts and U.S. persons as an investigatory body?

COMEY: Well all I can tell you is what we’re investigating which includes whether there was any coordination between people associated with the Trump campaign and the Russians. . . . 

SEWELL: Can you say with any specificity what kinds of coordination or contacts you’re looking at in your investigation generally when confronted with something like this?

COMEY: I can’t.

SEWELL: Can you discuss whether or not there was any knowledge by any Trump- related person and the Russians?

COMEY: I can’t.

SEWELL: So with respect to any ongoing investigation, whether the specificity of the person, U.S. person or otherwise, you can’t comment on any of that.

COMEY: Correct.

SEWELL: OK. Can you characterize what the nature of your investigation generally, wouldn’t — when you do an investigation of this sort, can you talk a little bit about the process, generally?

COMEY: Not a whole lot. I can tell you we . . . coordinate with our brothers and sisters in other parts of the intelligence community to see what they may know from around the world that might be useful to us and we use all the different tools and techniques that we use in all of our investigations. That’s probably the most — I’m not sure that’s useful to you, but that’s the most I can say.

SEWELL: How long does a counterintelligence investigation like this usually take? You said that it started in July.

COMEY: There is no “usually.” It’s hard — it’s impossible to say, frankly. [Emphasis added.]

All of this is why the FBI would normally never reveal to the public that it is conducting a counterintelligence investigation. Such an investigation is a matter of “Spy vs. Spy,” aimed not at a resolution but at evaluating vulnerabilities and probing potential assets. Because national security is at stake, innocent people can be freely investigated, there’s no due process, and there are effectively no rules. The only protection is that these investigations don’t become public. Until now.

This is not to say that the Trump campaign is wholly innocent here, or that no investigation should happen. Counterintelligence investigations are opened for a reason, too. But those reasons are fundamentally political rather than legal in nature. Which is why the voters, who on the Democratic side are drinking deeply of conspiracy theories about the 2016 election, deserve a public accounting by Congress rather than vague declarations that “an investigation is ongoing” from the FBI, followed by no public outcome or reckoning, ever. Of course, Comey added that “as with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.” But that’s just FBI-speak for “if we find anything, we’ll go after it.” It’s not a statement that they have any reason to expect that they’ll find anything, much less that they have any evidence.

The contrast with the FBI investigation of Hillary Clinton and her inner circle in 2015–16 could not be more stark. That investigation involved a discrete, deliberate, publicly known event (the unprecedented establishment and use of an unsecure private e-mail server to handle a large volume of the official e-mail traffic to and from the secretary of state and her key advisers) and whether anyone involved had violated a specific federal criminal statute, 18 U.S.C. § 793(f):

Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense . . . through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed . . . shall be fined under this title or imprisoned not more than ten years, or both.

There being no dispute that Clinton had signed off on creation of the server and its use in conducting State Department business, the key questions were whether (1) e-mails on the server contained information “relating to the national defense” and (2) anyone involved had acted “through gross negligence.” These were questions governed by law, the answers to which could result in criminal prosecutions, as had happened in similar past cases. Testimony was taken, documents were examined. This is lawyers’ work.

By contrast, nearly nobody has suggested even a vague idea of what crimes the FBI might be investigating now, who might have committed them, or what evidence might prove them or fail to do so. Only one Democrat, Connecticut congressman Jim Himes, raised a theory at the hearing, which Comey refused to touch:

HIMES: First, Director Comey, can you tell me what the Foreign Agents Registration Act is?

COMEY: Sure. Not in an expert way, but it’s a statute that requires people who are acting as agents of a non-U.S. government to register with the United States.

HIMES: . . . [T]he National Security Division of the Department of Justice writes [in] their manual. The purpose of FARA . . . is to ensure that the U.S. government and the people of the United States are informed of the source of information and the identity of persons attempting to influence U.S. public opinion, policy, and laws. . . . Would you agree that guarding against foreign espionage or foreign influence measures falls under this heading?

COMEY: Yes.

HIMES: In general, is willful violation or failure to register pursuant to this law in some circumstances a crime?

COMEY: I believe it is. I’m not an expert on FARA, but I believe it is.

HIMES: And it could lead, certainly, to counterintelligence concerns, right?

COMEY: Yes.

HIMES: Now, Paul Manafort, as reported in the New York Times and other outlets and his deputy, Rick Gates ran a campaign in Washington to lobby government officials and push positive press coverage of pro Russian-Ukrainian officials. Paul Manafort began officially working for former Ukrainian President Yanukovych at least as far back as 2007, according to the Washington Post.

The lobbying was only discovered by Ukraine’s new National Anti- Corruption Bureau, which found secret ledgers in Kiev, indicating almost $13 million in undisclosed cash payments from Ukrainian government coffers . . . to Paul Manafort for lobbying done between 2007 and 2012, for Mr. Yanukovych. . . . Director Comey, did Paul Manafort ever register as a foreign agent under FARA?

COMEY: That’s not something I can comment on. . . . I really don’t wanna get into answering questions about any individual U.S. person. . . . Look, I’m — it’s obvious from the public record. But I don’t wanna start down the road of answering questions about somebody.

HIMES: . . . I think the facts would show that he never did register. . . . It appears, from our standpoint, that we . . . had perhaps somebody who should’ve registered under FARA pulling the strings [in the Republican platform]. . . . is it fair to say that the line that exists in the United States between government officers and government officials, is blurred in Russia? That there may be oligarchs or other individuals who on the surface appear to be private citizens, but who have connections to this close-knit cabal who might be agents of influence or might be doing the Kremlin’s bidding in contact with others?

COMEY: That’s fair to say and one of our counterintelligence missions is to try to understand who are those people and are they acting on behalf of the Russian government, those Russian citizens. [Emphasis added.]

That sort of fact-gathering is useful work, but a far cry from a criminal investigation. Other theories of criminality are even more far-fetched, and advanced in the complete absence of evidence: violations of the Logan Act (as Jim Geraghty has noted, nobody has ever been prosecuted under it), or conspiracy, or aiding and abetting WikiLeaks’s publication of the stolen Podesta e-mails. In reality, Trump’s detractors are left hoping that the FBI might either find a crime, create one by prosecuting someone for lying to investigators or perjuring themselves, or just never declare the investigation closed.

At some level, Democrats and liberal commentators know this. Indeed, they are counting on the fact that there will never be a public end to such an investigation, nor any need to back up insinuations of wrongdoing with facts or evidence (as would be the case for either an FBI criminal investigation or a congressional inquiry). That’s why Chuck Schumer is making this the centerpiece of his argument for filibustering Judge Gorsuch, an exercise in pure trolling: It’s an all-purpose get-out-of-governing-free card for Democrats, allowing them to exercise their id on the assumption that their voting base neither knows better nor cares.

Trump, through a variety of exercises of bad judgment, has earned a thorough and public investigation of what (if anything) his campaign did to encourage or collaborate with Russian efforts to influence the 2016 election. If you care about the integrity of American elections and government, you should want that. But if your goal is merely to throw a tantrum over Clinton’s loss, an investigation that never ends and never requires any evidence of a crime is an ideal excuse to avoid responsibility for governing.

Dan McLaughlin — Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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