Who gave the FBI the power to investigate the president? The president did.
Let’s begin with a series of difficult questions. What should the FBI do when it possesses information that causes trained counterintelligence officials to fear that the president of the United States is — either knowingly or unknowingly — falling under the influence of a hostile foreign power? Should the FBI investigate the man who ultimately runs the agency? Can it investigate a man who has considerable power even to define American national interests?
I’d suggest that these questions, for now, have been asked and answered by the president. Or, more specifically, by the presidency. Executive Order 12333 — drafted in 1981, amended in 2003, 2004, and 2009, and still in effect today — defines the executive branch’s counterintelligence mission and allocates responsibility for carrying out that mission. And under that executive order, the president has defined counterintelligence and has precisely delegated specific tasks to different executive branch agencies.
First, the definition of counterintelligence is as follows:
Counterintelligence means information gathered and activities conducted to identify, deceive, exploit, disrupt, or protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, or persons, or their agents, or international terrorist organizations or activities. [Emphasis added.]
The highlighted words are particularly important. The focus is on the effort of the foreign power. The executive order allocates responsibility for the counterintelligence mission based on the relevant statutory framework and mission of each agency. Here’s what it has to say about the responsibilities of the FBI:
(g) INTELLIGENCE ELEMENTS OF THE FEDERAL BUREAU OF INVESTIGATION. Under the supervision of the Attorney General and pursuant to such regulations as the Attorney General may establish, the intelligence elements of the Federal Bureau of Investigation shall:
(1) Collect (including through clandestine means), analyze, produce, and disseminate foreign intelligence and counterintelligence to support national and departmental missions, in accordance with procedural guidelines approved by the Attorney General, after consultation with the Director;
(2) Conduct counterintelligence activities; and
(3) Conduct foreign intelligence and counterintelligence liaison relationships with intelligence, security, and law enforcement services of foreign governments or international organizations in accordance with sections 1.3(b)(4) and 1.7(a)(6) of this order. [Emphasis added.]
There is no exemption in this order applicable to the actions or conduct of a president or of any other member of the executive branch. If Trump wanted to amend this order to exempt himself and key officials from the FBI’s counterintelligence mission, he could — so long as his order didn’t conflict with any constitutionally valid federal statutes.
But for now, this executive edict exists, and it specifically orders the FBI to carry out its part of the American counterintelligence mission.
Why emphasize this order? Because it helps us understand why the FBI would believe it had the authority and responsibility to allegedly open a counterintelligence investigation of the president. The New York Times bombshell report has triggered a round of important debate and thoughtful criticism of the FBI, including from two men I greatly respect — Harvard Law School’s Jack Goldsmith and my boss at National Review, Rich Lowry. Professor Goldsmith and Lowry both raise interesting and important questions about the FBI’s role.
Let’s look at one of Professor Goldsmith’s concerns first. After discussing how the FBI defines its counterintelligence mission in part as protecting against threats to American national security, the professor raises this key point:
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.
I’d argue that this concern is answered by the very definition of counterintelligence quoted above. The Attorney General’s Guidelines for Domestic FBI Operations define a “threat to national security” in part as “espionage and other intelligence activities, sabotage, and assassination, conducted by, for, or on behalf of foreign powers.” The definition isn’t dependent on the policy but rather the prime mover. Is it the president or the foreign power?
If Russia has engaged in “espionage” or “other intelligence activities” to induce the president (knowingly or unknowingly) to act on its behalf, then those actions (and their effects) are within the scope of the FBI’s mission. It’s black-letter law under a currently operative presidential order.
In addition, the existence of this order helps respond to Rich’s concern here: “The Times story is another sign that we have forgotten the role of our respective branches of government. It is Congress that exists to check and investigate the president, not the FBI.” But through Executive Order 12333, the president gave the FBI its current role — and explicitly subjected it to attorney-general oversight.
And that attorney-general oversight (or, in this case, deputy-attorney-general oversight, since the attorney general had recused himself from the Russia investigation) is critical. It’s the role of the man appointed by the president to prevent the parade of horribles that could easily flow from FBI abuses. We don’t want presidents placed under FBI investigation simply because the bureau might believe the president’s actions are dangerously wrong.
Rich rightly notes:
The president gets to fire subordinate executive-branch officials. He gets to meet with and talk to foreign leaders. He gets to make policy toward foreign nations. Especially important to the current investigation, he gets to say foolish, ill-informed, and destructive things.
Yes, he gets to do all those things, but according to the applicable law, when confronted with sufficient evidence of foreign intelligence activities, the FBI has the authority and obligation to investigate whether the president is doing those things on behalf of a foreign power.
It’s important to pause and note that despite an intense amount of coverage and reporting on Russian and Trump-team activities during and after the campaign, we do not yet know everything the FBI knew (or, critically, thought it knew) when it allegedly opened its counterintelligence investigation. Firing James Comey and bragging to the Russians that he did it because of the Russia investigation is but one odd event. Sharing classified information with Russians was another. We now know about many other odd occurrences that had happened by 2017 (and this is a very partial list):
• Trump’s son, son-in-law, and campaign chair met with a purported Russian representative for the purpose of obtaining negative information about Hillary Clinton, as part of an explicitly-described Russian effort to help Trump.
• Trump was pursuing an extraordinarily lucrative business deal in Moscow well into the 2016 campaign, and his lawyer and “fixer” was in contact with a representative of the Putin regime.
• Trump hired Paul Manafort as campaign chair, a man with longstanding ties to a Russian-supported Ukrainian strongman who was also deeply in debt to a Kremlin-tied Russian oligarch.
• Manafort shared polling data during the presidential campaign with Konstantin Kilimnik, a person “tied to Russian intelligence.”
• Russian operatives reached out to Trump-campaign official George Papadopoulos with an offer of sharing “dirt” on Hillary in the form of “thousands of emails.”
• Trump’s key national-security aide, Michael Flynn, had been paid tens of thousands of dollars by Kremlin-backed interests.
• Longtime Trump friend and adviser Roger Stone — a man who the special counsel’s office alleges was in “regular contact with senior members of the Trump campaign” — also reportedly made substantial efforts to communicate with Wikileaks.
The list could easily continue without even touching the dubious Carter Page FISA application and the suspect Steele dossier. Intelligence agencies concluded that Russia developed a clear preference for Trump over Hillary, so I’d be stunned if a competent counterintelligence professional wasn’t concerned about the extent of Russian influence over the campaign and, indeed, over Trump himself.
At the very least, if we’re concerned about negative precedents, shouldn’t we be also concerned — perhaps even more concerned — by a presidential campaign that featured such extensive clandestine ties (including financial ties) with a hostile foreign power than we are by a federal agency fulfilling its president-defined legal mandate, under president-designated Department of Justice oversight?
It is quite fair to say (and obvious as you read the relevant guidelines) that counterintelligence responsibilities were not allocated with a potential investigation of the president in mind. It seems not to have crossed previous presidents’ minds that there could exist credible concerns that a president would knowingly or unknowingly act on behalf of a hostile foreign power.
Sadly, now we know those credible concerns can exist. It would be rational and wise for a future president and Congress to work together to more precisely define and establish worst-case counterintelligence investigation procedures applicable even to presidents. In the meantime, the FBI can apply only the guidelines and orders that exist, and the available evidence suggest that by opening an investigation of the president it was, ironically enough, following presidential orders. The FBI wasn’t abusing its power. It was fulfilling the mission the president gave it.