A rare moment of sanity—with an even rarer potential for good governance—emerged last month from the miasma of President Trump’s continuing war on the “Deep State.” After the Justice Department’s Inspector General reported that FBI investigators repeatedly misrepresented or withheld evidence from the Foreign Intelligence Surveillance Court when they applied to wiretap Carter Page, a former Trump campaign adviser, the Court’s Chief Judge ordered the Bureau to reform the way it seeks permission to eavesdrop on Americans in national security cases.
For years, civil libertarians have warned about the lack of transparency and accountability in the FISA process. Targets almost never find out that their calls or emails have been monitored or what information the government provided to get permission to listen in. The FBI told the Court in early January that it would improve oversight and training, and there is some small hope for broader surveillance reforms–with Republicans who fiercely opposed or watered down earlier efforts now converted to the privacy cause (at least for this President).
Good news and good governance have a brief shelf life in Donald Trump’s Washington. Trump and his Attorney General, William Barr, immediately rejected the other big takeaway from the IG’s report: Despite the President’s charges of witch hunts, conspiracies, and treason, the FBI had a legal basis to open an investigation in 2016 into possible links between the Trump campaign and Russia, and the Bureau’s top leaders were not driven by anti-Trump bias. Even before the Horowitz report was completed, Trump and Barr had shifted their sights to the next investigation, this one headed up by Barr and his chosen investigator, U.S. attorney for Connecticut John Durham. At a Pennsylvania political rally the day after the IG’s report was released, Trump attacked FBI agents as “scum” and the Bureau leadership as “not good people,” declaring to a cheering crowd, “I look forward to Bull Durham’s report–that’s the one I look forward to.”
The Barr-Durham investigation is again focusing on alleged biases and misdeeds in the origins of the Russia probe (how many times before they get the answer they want?). But this one is also examining the January 2017 assessment by the CIA, FBI, and NSA that Russia interfered in the 2016 campaign with the goal of helping “Trump’s election chances when possible by discrediting Secretary Clinton.” There is no doubt what Trump is looking for: a declaration that Moscow played no role in his victory. Of course, his very best outcome would be a discovery that some other foreign power—Ukraine is the President’s preferred candidate—was the one really meddling in the election, on behalf of Hillary Clinton with the connivance of the Obama White House.
Let’s remember that the first favor Trump asked of Ukraine’s President Zelensky in their July 25th phone call was about the hacked DNC server he believes was spirited to Ukraine—it’s still in the DNC’s basement—telling Zelensky, “I would like to have the attorney general call you or your people, and I would like you to get to the bottom of it.” On Saturday’s opening day of Trump’s impeachment defense, Jay Sekulow, one of the President’s lawyers, argued that Trump was right “to inquire about the Ukraine issue himself,” rather than “blindly trust[ing] some of the advice he was being given by the intelligence agencies,” adding, “They kept telling you it was Russia alone that interfered in the 2016 election, but there is evidence Ukraine also interfered.”
In public, U.S. intelligence officials insist that they are getting all the support they need from the White House to do their work, including safeguarding the 2020 vote. But Trump’s solipsism and bullying are clearly taking a toll. Politico reported earlier this month that the Office of the Director of National Intelligence has been trying to persuade Congressional leaders to drop this year’s public testimony on the intelligence community’s annual worldwide threats assessment, for fear of again contradicting and infuriating Trump. When intelligence leaders testified last year that North Korea was unlikely to ever abandon its weapons and Iran was not cheating on the nuclear deal, Trump tweeted that they were “passive” and “naïve” and “Perhaps Intelligence should go back to school!”
If Trump gets even part of what he wants and a Barr-Durham report is crafted to feed public doubts about Russian election interference, Putin’s malign intent, or the reliability of U.S. intelligence analyses—all favored Trump memes—then U.S. national security will take a major hit: The Russian leader will be even more enabled in the midst of a new U.S. presidential campaign; U.S. intelligence partners even more unwilling to share information; and the American public even more skeptical of their government.
Durham—who had a reputation for even-handedness until he jumped out ahead of his own investigation and criticized the IG’s findings on “predication and how the F.B.I. case was opened”—has been closed-mouthed about any theories he might harbor. Judging from Barr’s public pronouncements, and his travel schedule (more on that below), he appears intent on proving once and for all the illegitimate origins of the FBI probe. (He has already accused the FBI of “spying” on the Trump campaign and declared that, “The president bore the burden of probably one of the greatest conspiracy theories—baseless conspiracy theories—in American political history.”) Whether he is also determined to “debunk” the 2017 intelligence community analysis on Russian interference, or just indulging Trump, is less clear, but there is certainly reason to worry.
Trump’s relentless attacks on his own intelligence services—and the recklessness with which he blurts out secrets in Oval Office meetings or tweets classified satellite images or the supposed name of the CIA whistleblower—has led key allies to question the continuing reliability of the U.S. intelligence partnership. The sight of Barr end-running the normal intelligence channels and expressing his and the White House’s contempt for their own Intelligence Community is further straining relations. On a trip to Italy this past summer, Barr went as far as asking Italian intelligence chiefs about possible nefarious activities by U.S. operatives on Italian soil.
The disbelief and rancor heaped on the Administration at home—including from some members of their own party—for the shifting justifications for the January drone strikes that killed a top Iranian general can be attributed to Trump’s own long-squandered credibility, the arrogance of their evidence-free briefing on Capitol Hill, and the fact that Trump and his advisors didn’t bother to get their public stories straight. But Trump’s attacks on the intelligence community have also taken their toll, especially with his base. Fox News host Tucker Carlson dismissed Secretary of State Mike Pompeo’s trust-me-but-I-can’t-tell-you description of the imminent Iranian threat, telling viewers, “It seems like about 20 minutes ago, we were denouncing these very people as the Deep State and pledging never to trust them again without verification.”
Trump and Barr remain undaunted. In May, the President gave Barr the power both to declassify intelligence for the investigation and overrule any objections from the intelligence chiefs. Steve Slick, a former member of the CIA’s clandestine service and special assistant to President George W. Bush who directs the Intelligence Studies Project at the University of Texas at Austin, calls the move “alarming,” both because “it betrayed an instinctive lack of trust by the President, and likely the AG, in the integrity and loyalty of the intelligence agencies,” and because “declassification decisions made by inexperienced criminal investigators pose obvious risks to sensitive sources, fragile collection methods, and the confidence of foreign liaison counterparts.” In October we learned that the Barr-Durham probe has become a criminal inquiry, with the additional power to issue subpoenas.
Meanwhile, Barr has taken three trips to Europe, some with Durham, apparently to chase down a right-wing conspiracy theory, favored by the President and his most vocal backers on the Hill, about a CIA and Obama White House plot to deny Trump the presidency. As this story goes, the London and Rome-based professor, Joseph Mifsud, who told a Trump foreign policy adviser in the summer of 2016 that Moscow had “thousands” of hacked Clinton emails, was actually a western agent sent to entrap the campaign. The FBI probe was launched after George Papadopoulos told an Australian diplomat in London about the conversation and the Australians alerted U.S. officials.
In October, Italian Prime Minister Giuseppe Conte, pummeled by his Parliament for authorizing his intelligence chiefs to meet with Barr, went public with the details, telling reporters that the U.S. Attorney General had asked about Mifsud’s relations with their intelligence agencies and also “to verify what the American intelligence did.” “Our intelligence is completely unrelated to the so-called Russiagate and that has been made clear,” Conte declared. Barr and Durham also took the show to London. And Trump called Australian Prime Minister Scott Morrison to ask him to provide help. If our allies were consoling themselves that this is all Trumpian madness, Lindsey Graham, chairman of the Senate Judiciary Committee, then sent his own letter to the leaders of Australia, Italy, and the UK justifying Barr’s efforts and claiming that the FBI and CIA “relied on foreign intelligence” to “investigate and monitor the 2016 presidential election.” The Australians immediately rejected the letter’s assertion that their London ambassador had been “directed” to contact Papadopoulos and to “relay information obtained from Papadopoulos regarding the campaign” to the FBI.
It doesn’t look like it will take much work to debunk the Papadopoulos-Mifsud conspiracy—assuming that investigators want the straight facts. Mueller and his team already did their own exhaustive legwork on Mifsud (and his Russian travels and contacts) and nothing factual has come out since to contradict what they found.
The more worrisome strand of their work is the investigation into alleged bias in the 2017 intelligence community assessment on Russian interference in the US election. According to The New York Times, Durham is taking a close look at the role of former CIA director John Brennan—one of the president’s most vocal critics, Trump moved to strip him of his security clearance in August 2018—requesting his call logs, emails and other records from the agency, and is particularly interested in whether Brennan championed the salacious and, we know now, hugely problematic Steele dossier as part of the finding. Brennan has denied that and all of the information that has come to light suggests he did the opposite. According to the Horowitz report, the CIA under Brennan “expressed concern about the lack of vetting for the Steele election reporting and asserted it did not merit inclusion in the body of the report. An FBI Intel Section Chief told us the CIA viewed it as ‘internet rumor.’” That said, Brennan’s overheated post-CIA performance—tweeting that Trump’s Helsinki press conference with Putin “was nothing short of treasonous” and writing in an op-ed that “Mr. Trump’s claims of no collusion are, in a word, hogwash”—has left him, and by implication the Agency, vulnerable.
Barr and Durham may also be probing for any differences in the intelligence agencies’ analyses in the 2017 finding. The CIA, NSA, and FBI all agreed with “high confidence” on the overall judgment that “Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the US presidential election . . . to undermine public faith in the US democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency. We further assess Putin and the Russian Government developed a clear preference for President-elect Trump [emphasis added].”
But there was some difference on a second assessment that “Putin and the Russian Government aspired to help President-elect Trump’s election chances [emphasis added] when possible by discrediting Secretary Clinton and publicly contrasting her unfavorably to him.” According to the declassified version of the assessment, while “all three agencies agree with this judgment,” the CIA and FBI both expressed “high confidence”; the NSA (Durham and his investigators have reportedly met with former NSA Chief Adm. Mike Rogers several times) had “moderate confidence.” UT’s Slick says intelligence analysis remains “more art than science” and “it is perfectly normal, even routine, for two analysts or teams of analysts looking at the same intelligence reporting to assign a different level of confidence to a shared judgment.”
There is always a chance that the intelligence community got that part of the analysis wrong, although everything Putin has done since makes that very hard to imagine. It is very easy to imagine how “high” vs. “moderate” confidence can be spun to serve the Trump narrative. If, as has been reported, the IC’s source on Putin’s intentions was a Kremlin insider, it could be impossible for the Agency to push back in public.
It would be folly to sit back and hope that the already-considerable damage from the Barr investigation—and Trump’s wider assaults on the Russia finding, the intelligence community’s other analyses, U.S intelligence relationships, the list goes on—can be contained and the final report turns out better than signs suggest. Leaders of the IC need to fully commit to needed reforms—including confronting mounting concerns about politicization of intelligence analysis. And responsible members of Congress need to get back to their regular non-politicized oversight responsibilities. Admittedly none of this will be easy given the President’s penchant for firing top officials, Republicans’ enabling of Trump no matter how high the stakes or how obvious the offense, and the Democrats’ desire to score points against the President.
In the wake of the Horowitz report, FBI Director Christopher Wray has repeatedly drawn Trump’s fire, first for highlighting the IG’s finding that the FBI’s Russia probe was justified—“With that kind of attitude, he will never be able to fix the FBI, which is badly broken,” Trump tweeted—and then for admitting to the FISA application errors but not punishing “dirty cops.” “Chris, what about all of the lives that were ruined because of the so-called ‘errors?’ Are these ‘dirty cops’ going to pay a big price for the fraud they committed?” the President tweeted at his FBI director.
An expert on surveillance law appointed by the FISA court to assess the FBI’s reform plan has recommended additional changes. To restore confidence in the Bureau and the FISA process, the IG will need to go further and complete an in-depth review of many more FISA warrant applications to establish the full extent—and source—of the problems. If it turns out that errors in the Carter Page application are indeed widespread, then the Bureau’s announced fixes with the added revisions may be enough, although a recent op-ed in the Times by Cato’s Julian Sanchez makes a persuasive argument for why the Bureau needs to rework its procedures to address the problem of confirmation bias. Alternatively, if it turns out that the 17 errors and omissions and misrepresentations identified in the Page case are rare, then the Bureau may indeed have a serious problem of political bias that needs to be identified and rooted out. It certainly wouldn’t be the first time for the FBI. Trump’s relentless attacks are hyperbolic and destructive. But they mustn’t prevent a full investigation of what went wrong with the FISA applications—and a full effort to address the problems.
CIA Director Gina Haspel has managed to avoid Trump’s personal wrath (except for the threat assessment tweets, and that was a collective drubbing). But she should be seriously worried about the ongoing toll of Trump’s and now Barr’s assaults on her agency’s credibility and what further damage a Barr-Durham report might do. Placing the Attorney General and a U.S. Attorney in charge of reviewing/criminally investigating the 2017 intelligence community analysis has to send an especially chilling message to her analysts about the danger of not toeing the Trump line.
Haspel needs to address the fear—outside the CIA and in—that the CIA has been politicized either for or against Trump. As a first step, Haspel should review her predecessor Robert Gates’ 1992 speech to CIA analysts pledging to guard against politicization and the in-house survey that preceded it. With that historical cover, she could then launch her own survey to find out just how freaked out her own people really are—and follow up with her own strong public commitment to guard against politicization and protect their work and careers. Gates, the consummate Washington bureaucrat, acted after a bitter Senate confirmation hearing in which he was accused by former Agency colleagues of hyping the Soviet threat to please his masters. If Haspel thinks her own position is significantly stronger—or the current institutional necessity is any less pressing—she should also review George Papadopoulos’ Twitter feed in which her service as London station chief in 2016 plays a prominent role in the Mifsud entrapment conspiracy.
Congress also needs to get back into the business of serious oversight, rather than attacking or defending the intelligence community based on fealty to or animus toward Donald Trump. The Democrats on the House Intelligence Committee, and their chairman Rep. Adam Schiff, blew it with their unalloyed defense of the FBI’s FISA applications (rebutting a conspiracy-riddled memo from the then-Republican majority under Rep. Devin Nunes, a voluble champion of dark and outlandish theories). Schiff has admitted his error and now is otherwise engaged as an impeachment manager. But as the Chair of the House Intelligence Committee he can help improve the IC’s performance and bolster its credibility if he makes clear that it will no longer get a pass just because it is Donald Trump’s favorite target.
Schiff—and his far more bipartisan counterparts on the Senate Intelligence Committee—can start by holding long overdue public hearings on why the intelligence community failed to raise an early alarm about Russia’s assault on the 2016 elections. Moscow had been in the business of information warfare since at least 2008 and mounted a full-on assault in Ukraine in 2014. President Obama wasn’t warned about Putin’s plan to disrupt the U.S. elections until August 2016—a month and a half after the first tranche of hacked DNC documents were unleashed. In any other times, this would be called what it was: a major intelligence failure, one that requires a full public accounting to ensure that it is not repeated.
Whatever the Barr-Durham investigation comes up with, oversight hearings on the IC’s 2016 performance would also reinforce to the American public—and Moscow and Tehran and any other actors planning to interfere in U.S. elections—how seriously the U.S. Intelligence Community, U.S. law enforcement, and the U.S. Congress, if not the Trump White House, consider the threat. And how closely they will be watching in 2020 and beyond.
