Law & the Courts

What Did Comey Tell President Trump about the Steele Dossier?

National Security Adviser Susan Rice with President Barack Obama at the G20 Summit in St. Petersburg, Russia, September 5, 2013. (Kevin Lamarque/Reuters)
The Rice email outlines Obama’s strategy to withhold key details of the Russia investigation.

On her way out the White House door and out of her job as national-security adviser, Susan Rice writes an email-to-self. Except it’s not really an email-to-self. It is quite consciously an email for the record.

Her term having ended 15 minutes before, Rice was technically back in private life, where private people have private email accounts — even notepads if they want to scratch out a reminder the old-fashioned way. Yet, for at least a few more minutes, Rice still had access to her government email account. She could still generate an official record. That’s what she wanted her brief email to be: the dispositive memorialization of a meeting she was worried about — a meeting that had happened over two weeks earlier, at which, of course, President Obama insisted that everything be done “by the book.”

Funny, though: The “by the book” thing about contemporaneous memos is that they are, well, contemporaneous — made at or immediately after the event they undertake to memorialize. They’re written while things are as fresh as they will ever be in one’s mind, before subsequent events motivate the writer to spin a decision, rather than faithfully record it.

An email written on January 21 to record decisions made on January 5 is not written to memorialize what was decided. It is written to revise the memory of what was decided in order to rationalize what was then done.

The Trump–Russia Investigation as of January 5

January 5 was the day President Obama was presented with the ballyhooed report he had ordered to be rushed to completion by multiple intelligence agencies before his administration ended, “Assessing Russian Activities and Intentions in Recent US Elections.” The briefing that day was conducted by four intelligence-community leaders: James Comey, Michael Rogers, John Brennan, and James Clapper, directors respectively of the FBI, NSA, CIA and the Office of the National Intelligence Director.

Just as significant: January 5 was the day before these same intelligence-community leaders would brief President-elect Trump on the same report.

Also on hand at the January 5 White House briefing were Vice President Joe Biden and acting Attorney General Sally Yates. According to Rice, immediately after the briefing, President Obama had his two top law-enforcement officials, Yates and Comey, linger for “a brief follow-on conversation” with the administration’s political leadership: Obama, Biden, and Rice.

Let’s think about what was going on at that moment. It had been just a few days since Obama imposed sanctions on Russia. In that connection, the Kremlin’s ambassador to the United States, Sergey Kislyak, had contacted Trump’s designated national-security adviser, Michael Flynn. Obama-administration leadership despised Flynn, who (a) had been fired by Obama from his post as Defense Intelligence Agency chief; (b) had become a key Trump supporter and an intense critic of Obama foreign and national-security policy; and (c) was regarded by Yates and Comey as a possible criminal suspect — on the wayward theories that Flynn’s contacts with Kislyak could smack of a corrupt quid pro quo deal to drop the sanctions and might violate the never invoked, constitutionally dubious Logan Act.

What else was happening? The Justice Department and FBI had gone to the FISA court on October 21, 2016, for a warrant to spy on former Trump campaign adviser Carter Page. That warrant relied largely on the Steele dossier, which alleged a criminal conspiracy between the Trump campaign and the Kremlin involving (a) a cyberespionage operation against the 2016 election, (b) corrupt negotiations regarding the sanctions, and (c) the Kremlin’s possession of “kompromat” that would enable the Putin regime to blackmail President-elect Trump.

The officials in the meeting would need to figure out how the investigation could continue despite the fact that its central focus, Trump, was about to be sworn in as president.

Significantly, by the time of this January 6 meeting with Trump, the 90-day surveillance period under the FISA warrant would have had just a bit over two weeks left to run — it was set to expire just as Trump was to take office. (Reporting suggests that there may also have been a FISA warrant on Paul Manafort around this time.) The Obama administration was therefore confronting a deadline if the FISA warrant was to be renewed while Obama was still in power. The officials in the meeting would need to figure out how the investigation could continue despite the fact that its central focus, Trump, was about to be sworn in as president.

Obama had incredibly claimed that he never intervened in cases under investigation by the Justice Department and FBI. He was emphatic in an April 2016 interview with Fox’s Chris Wallace: “I do not talk to the attorney general about pending investigations. I do not talk to FBI directors about pending investigations. We have a strict line and always have maintained it.” Ever the cheeky Obama, he made this claim while in the same breath arguing against indicting Hillary Clinton.

Obviously, if Obama was having a “follow-on conversation” with Yates and Comey, what it was following on was the briefing he’d just received about an investigation implicating the Trump campaign in Russian espionage. (As Comey’s March 20 House testimony would later elucidate, Russia’s interference in the election was always seen by law-enforcement officials as inseparable from suspected Trump campaign collusion in that interference.) There would be no reason to have such a follow-on conversation unless Obama wanted an update on what his law-enforcement officials were doing.

Consequently, Rice’s “by the book” bunkum is transparent: Obama officials claimed to adhere to a book that forbade consultations between political leaders and investigators. But here they were consulting. So Rice tried to cover the tracks in her email: She revises history such that the consultation morphs into a mere friendly reminder that Obama wanted everything done by the book. He was certainly “not asking about, initiating or instructing anything from a law enforcement perspective,” no siree.

We might counter that people who have lived “by the book” for eight years would not have to remind each other to go “by the book.” It would go without saying.

‘We Cannot Share Information Fully as It Relates to Russia’

Let’s move beyond “the book.” Far more important are the last paragraphs of Rice’s email. She recounted that “President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.

There follows a blacked-out paragraph, clearly redacted because it is either classified or would expose investigative information — no doubt, some of the information that “we cannot share fully.” Rice then closes with Obama’s instruction to Comey to inform Obama “if anything changes in the next few weeks that should affect how we share classified information with the incoming team.”

That is what Rice’s email is really about: not sharing with the incoming Trump administration classified information about the Trump-Russia investigation, such as the basis for seeking a FISA warrant on Carter Page.

The dilemma was that the Obama administration had placed “the incoming team” — in particular, President-elect Trump — under investigation. Remember, Obama’s law-enforcement agencies believed the Steele dossier. No, the FBI had not been able to corroborate it; but, as former FBI director Comey told Congress, the bureau deemed its author, Christopher Steele, to be a reliable source. Steele, moreover, had collaborated on the project with Nellie Ohr, the wife of Bruce Ohr, Yates’s top aide at the Justice Department. Even if the Justice Department and the FBI could not prove Steele’s allegations, at least not yet, they still believed that Trump was compromised and that the Russians could be blackmailing him. If they had not believed those allegations were credible, they would not have put them in a warrant application to the FISA Court.

So we arrive at the knotty question for Obama political and law-enforcement officials: How do we “engage with the incoming team” of Trump officials while also determining that “we cannot share information fully as it relates to Russia”? How do we assure that an investigation of Trump can continue when Trump is about to take over the government?

What is the answer? Let’s consider what happened the next day.

Trump’s Very Limited Briefing on the Dossier

We’ve heard the story a million times: After President-elect Trump was briefed by agency leaders on the intelligence community’s Russia report, Comey met privately with Trump to brief him on the Steele dossier.

But is that what happened? I don’t think so. I believe Trump was briefed only on a sliver of the dossier.

Remember, the Obama administration presumption was: “We cannot share information fully as it relates to Russia.” When we scrutinize Director Comey’s carefully crafted Senate testimony from last June, and when we consider the panoply of what a full briefing on the Steele dossier would have entailed — the breadth of the Trump–Russia corruption allegations, the FISA warrant applications and their heavy reliance on the dossier, the fact that the dossier was a Clinton campaign project — it is manifest that Comey did not give Trump the full picture of what the dossier was and how it was being used by the FBI and the Justice Department. Certainly, President Trump was not informed to the same extent President Obama was. The main purpose of counterintelligence operations is to keep the president informed; but when it came to the incoming president, law-enforcement leaders treated the Russia investigation like a criminal probe in which Trump was a suspect.

In Comey’s written testimony for the Senate Intelligence Committee, he averred (my italics): “At the conclusion of that briefing, I remained alone with the President-Elect to brief him on some personally sensitive aspects of the information assembled during the assessment.” The point, Comey elaborated, was to “alert the incoming president to the existence of this material, even though it was salacious and unverified.” Comey agreed to do this part of the briefing by himself (rather than in the presence of other intel chiefs) “to minimize potential embarrassment to the President-Elect.”

Personally sensitive. Salacious. Embarrassment. Does that sound like the whole Steele dossier? No, it sounds like the most notorious part of the dossier: the claims that, in 2013, Trump had cavorted with micturating prostitutes at the Ritz Carlton Hotel in Moscow, and that Russian intelligence recorded the escapade.

This understanding — that Comey gave Trump only a narrow briefing on the dossier — is consistent with the conversations between Comey and Trump that followed. During their January 27 dinner, for example, Comey recalled that Trump “returned to the salacious material I had briefed him about on January 6,” and “expressed disgust for the allegations and strongly denied them.” Trump even said he was considering ordering Comey “to investigate the alleged incident to prove that it didn’t happen.” Note that well: Trump was thinking of having the FBI investigate a single “salacious” incident that disgusted him.

That’s the peeing prostitutes. Trump was not protesting about the full sweep of Steele dossier claims. That’s because he was not fully briefed on them. Yes, the dossier was published in full by Buzzfeed just a few days later. But that did not tell Trump how and why the information was generated, who was behind it, what efforts had been made to corroborate it, and how it was being used by the FBI and Justice Department.

I will have more to say shortly about the former director’s careful wording, in both his briefing of Trump and his later testimony about that briefing. For the moment, let’s stick with what we’ve just outlined: Comey’s description of what he told Trump about the dossier, and what by Trump standards was the president’s remarkably tame reaction. It is completely consistent with the notion that Comey described a single, perverse allegation, and Trump confidently denied it. It is not at all consistent with the combustion that would surely have followed a full and detailed briefing on the dossier.

Imagine what would have happened, what we’d have heard from Trump, if Comey had said something along these lines:

Mr. President-Elect, that salacious story about prostitutes in Moscow is part of a set of reports by a former British intelligence officer, compiled during the 2016 race and paid for by the Clinton campaign. It alleges that you and your campaign engaged in a “conspiracy of co-operation” with the Russian government, in which your point man was Paul Manafort, who used Carter Page as an intermediary. Page is said to have met with two top Putin operatives in July while in Moscow, where they discussed (a) the possibility that you’d drop sanctions in return for significant financial considerations, (b) their willingness to share compromising information about Hillary Clinton with you, and (c) compromising information about you that they possessed and could use against you if you were not accommodating toward Russia. Later, the reports state, your lawyer, Michael Cohen, was dispatched to Prague for a secret meeting with Russian officials over media stories about Page’s activities in Moscow and Manafort’s ties to the Kremlin-backed Yanukovich party in Ukraine. It is further alleged that Putin’s regime, with your full knowledge and support, was behind the leaking of DNC emails to WikiLeaks.

There is much more in the reports, but that is the gist. Although the intelligence community has not been able to verify these allegations, the FBI has great confidence in the former British intelligence officer who provided the information to us. Therefore, in October, just three weeks before Election Day, the FBI and Justice Department incorporated these allegations in an application to the FISA court for a warrant to conduct surveillance on Carter Page. As a matter of fact, in the next few days, we’re planning to reaffirm these same allegations about your campaign and the Kremlin in another warrant application so the court can renew the surveillance for 90 more days. The warrants permit us to monitor Page’s communications, including any old emails and texts from his time working on your campaign that he may have stored rather than deleted.

Suffice it to say that, if President-elect Trump had been given a briefing of this breadth, Director Comey’s testimonial description of the briefing would have been very different, and we can bet that Trump’s reaction would have been explosive.

Was Trump ‘Under Investigation’?

Instead, it is a safe bet that the dossier briefing was kept to a minimum and that Trump was told he was not a suspect. The latter was true in only the most hyper-technical and misleading of senses.

Basically, after the “follow-on” discussion with Obama, Rice, and Biden on January 5, the FBI and the Justice Department proceeded to define the concept of being “under investigation” in a manner so crimped as to render it unrecognizable. A person was deemed “under investigation” only if he was the formal target of a FISA warrant — as if the warrant application were the totality of the investigation, as if the person formally targeted for surveillance were the only person of interest to the FBI. By thus bowdlerizing what it means to be a suspect, Comey could repeatedly assure Trump that he (Trump) was not “personally under investigation.” After all, Trump himself was not the target of the surveillance — only underlings like Page (and perhaps Manafort) were formally alleged to be agents of a foreign power for FISA purposes.

This is a distorted understanding of how investigations work.

Whether eavesdropping is done for national-security purposes under FISA or for law-enforcement purposes under criminal statutes, the objective is always the same: to uncover the full scope of a conspiratorial enterprise. The point is to identify all of the conspirators, and especially to establish the complicity of the most insulated leaders. Carter Page may have been the surveillance target named in the FISA warrant, but he was of low rank in the alleged conspiracy. The point of monitoring Page was to determine exactly what he was doing and, just as crucial, who was directing him. In the conspiracy outlined by Steele, Page was a virtual nobody. His only relevance was vis-à-vis Trump.

The investigation was about suspected Kremlin complicity with Trump; it was about the possibility that an adversary regime was in a position to blackmail the president of the United States. It was never about Carter Page.

Nevertheless, the Obama administration reckoned that if this were forthrightly explained to Trump, the investigation would be shut down. The FBI had no solid proof that Trump had actually colluded in any meaningful way with Russia. Furthermore, Trump strenuously denied doing so. Consequently, the Obama administration had to assume that, if he were fully informed, President Trump would not tolerate an investigation by his own administration expressly aimed at proving a traitorous Trump–Russia conspiracy that he denied and of which there was no evidence.

Now, you can believe that the Obama administration’s motives were political, that the Trump-Russia collusion narrative was mainly a Democratic-party concoction to rationalize Hillary Clinton’s defeat and cripple Trump’s fledgling administration. Or you can believe that Obama officials, altruistically motivated to protect national security, were convinced that Trump was in cahoots with the Kremlin, and they were desperately trying to prove it. Either way, though, the challenge for Obama’s team was to keep the investigation going even after Trump took office.

Since Trump would have the power to shut down the investigation, the trick was to avoid making him feel threatened by it. Therefore, the strategy was to withhold information that illustrated Trump’s centrality to the investigation, assure him that he was not a suspect, and gently admonish him about the need to respect law enforcement’s independence (on pain of being accused of obstruction).

From the FBI’s perspective, there was no downside to telling Trump he was not a suspect. As Comey acknowledged in his hearing testimony, responding to questions from Senator Angus King (I., Maine), any assurances that Trump was not under investigation were only “as of that moment.” Trump’s status could change instantaneously if the investigation of other people, such as Page, turned up any evidence implicating Trump.

Trump was always under investigation even if he was not personally targeted for FISA surveillance.

That is why Comey kept deflecting Trump’s entreaties that Comey tell the public Trump was not suspected of wrongdoing. In reality, Comey did suspect the president of wrongdoing and calculated that, at some point, the FBI would find the proof. The director therefore declined to absolve the president publicly, which eventually cost him his job. But Comey only gave the private assurances that the president was not “personally under investigation” in order to discourage Trump from interfering in the probe. The real objective of investigating Page and Manafort was to uncover corrupt ties — if there were any — between Russia and Trump. Thus, Trump was always under investigation even if he was not personally targeted for FISA surveillance.

This dissonance was not lost on the FBI. Before meeting with Trump on January 6, Comey met with his own FBI “leadership team” of advisers and discussed the plan to tell Trump he was not a suspect. At the Senate hearing, the committee’s ranking member, Mark Warner (D., Va.), asked the former director if everyone concurred in this plan. Comey’s answer was telling:

Was it unanimous? One of the members of the leadership team had a view that, although it was technically true [that] we did not have a counterintelligence file case open on then-President-elect Trump[,]#…#because we’re looking at the potential#…#coordination between the campaign and Russia, because it was#…#President-elect Trump’s campaign, this person’s view was, inevitably, [Trump’s] behavior, [Trump’s] conduct will fall within the scope of that work.

Comey’s unidentified adviser was clearly right: The fact that there was not a formal case file open on Trump just meant that he was not the express target of a FISA warrant. Trump was still the most central figure in the investigation.

The former director overruled his adviser, but he elaborated that their difference was over words, not substance:

I thought it was fair to say what was literally true: There is not a counterintelligence investigation of Mr. Trump. And I decided, in the moment, to say it, given the nature of our conversation.

Comey thus went ahead with the plan to tell Trump he was not under investigation. But his adviser was not swayed by the director’s insistence that being under investigation required having a formal file open as a FISA surveillance target. Comey recalled that this adviser’s position

didn’t change. His view was still that it was probably — although literally true, his concern was it could be misleading, because the nature of the investigation was such that it might well touch — obviously, it would touch the campaign, and the person at the head of the campaign would be the candidate.

Right: The investigation was about the candidate#…#Trump.

It is getting close to two years with no apparent evidence of an actionable Trump–Russia conspiracy.

To tell Trump he was not under investigation was misleading. Just like Susan Rice’s email was misleading. The plan forged by top Obama political and law-enforcement officials was to pursue an investigation of President Trump without sharing the full details of the investigation. They made a plan: Give Trump just a sliver of what the probe is about, tell him he is not under investigation, and keep investigating him under the guise of investigating Page, Manafort, and the Steele dossier.

It is getting close to two years with no apparent evidence of an actionable Trump–Russia conspiracy. Nevertheless, it is still necessary to ask: Is President Trump under investigation for collusion with the Kremlin? If not, shouldn’t he and the country be told that?

And since counterintelligence investigations are conducted to inform the president — the constitutional officer responsible for national security against foreign threats — it is worth asking: What was the difference between what the FBI told the FISA court about the Trump–Russia investigation and what they told the president of the United States about it?

 

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