Barbara McQuade, Opinion columnist
Published 7: 51 a.m. ET Dec. 10, 2019 | Updated 11: 14 a.m. ET Dec. 10, 2019
National Security: Low-level misconduct had no bearing on the opening of the FBI investigation or its findings. Barr is trying to muddle that message. Don’t fall for it.
The most telling aspect of Attorney General William Barr’s public statements is what he doesn’t say.
On Monday, the Justice Department’s Office of Inspector General released its much anticipated report into whether the Trump campaign was working with Russia to interfere with the 2016 U.S. presidential election. IG Michael Horowitz found that the investigation was properly opened under the law and the FBI’s guidelines, and that there was no evidence of that political bias or improper motivation influenced the decisions.
Despite this finding, Barr stated, “The Inspector General’s report now makes clear that the FBI launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken.”
Note what Barr did not say. He did not say that launching the investigation was illegal. Nor did he say the FBI violated any internal policy. Instead, he relied on his own opinion that the evidence was insufficient to justify the investigation. His hindsight does not make the investigation illegal or improper.
National Security: ‘Crossfire Hurricane’ met FBI standards
FBI investigations are governed by Attorney General guidelines and a manual called the Domestic Investigations Operations Guide, known by its acronym, “the DIOG.” Both the guidelines and the DIOG require that before an investigation may be opened, there must be an “authorized purpose” to obtain information about crimes or threats to the national security or to collect foreign intelligence. In addition, FBI investigations require an adequate factual “predication,” that is, an “articulable” factual basis that reasonably indicates an activity constituting a crime or a threat to national security.
Horowitz found that the investigation known as “Crossfire Hurricane” met this standard. The FBI opened the investigation in July 2016 after receiving information from a “friendly foreign government” that Trump campaign adviser George Papadopoulos “had suggested the Trump team had received some kind of suggestion from Russia that it could assist” with the anonymous release of information during the campaign that would be damaging to Hillary Clinton. At that time, the FBI also had information that Russia may have been connected to the WikiLeaks disclosure of emails that had occurred earlier that month. The FBI was also aware of Russia’s efforts to interfere in the election.
Based on this information, an FBI team conducted an initial analysis of links between Russia and members of the Trump campaign. This analysis prompted the FBI to open individual cases on Papadopoulos and three others connected to the Trump campaign — chairman Paul Manafort and advisers Carter Page and Michael Flynn. Horowitz found that the initiation of the investigations was properly authorized.
The conclusion that the predication standard was satisfied comes as no surprise. The standard is low, and deliberately so. While this standard prevents the FBI from opening an investigation on a whim or for an improper personal or political purpose, it allows probes to begin on even the slightest indication of a threat to public safety or national security. A higher standard would handcuff the FBI from completing its mission to protect and defend the American people.
National Security: FBI duty to investigate security risks
When predication indicates a threat to public safety or national security, the FBI has a duty to investigate. That duty applies even when the stakes are high, and the target is a powerful person in government. For the FBI to ignore such a threat would be to shirk its responsibilities, and instead leave our nation at risk.
Barr’s statement ignored other facts as well. He stated that “the evidence produced by the investigation was consistently exculpatory.” This statement overlooks facts contained in Special Counsel Robert Mueller’s report documenting contacts between the Trump campaign and Russia. He neglected to mention Trump’s negotiations for a Trump Tower in Moscow, the June 2016 meeting with Russians at Trump Tower in New York to obtain dirt on Hillary Clinton, and Manafort’s meeting with Konstantin Kilimnik in August 2016 to share polling data on battleground states. Barr’s omissions tend to make him sound more like a defense attorney for Trump than the Attorney General of the United States.
So much for Reagan legacy: Republicans have gone soft on Russia to protect Donald Trump
The IG investigation did find misconduct by the FBI in seeking warrants from the Foreign Intelligence Surveillance Court, a serious concern, but one that had no impact on the opening of the case or the results of the Mueller investigation. The FBI obtained four FISA warrants targeting Carter Page, the first in October 2016, and three renewals. Horowitz found that “FBI personnel fell far short” of the requirement to ensure that all factual statements in a FISA application are “scrupulously accurate.” As a result, decision makers lacked full information, and the applications made it appear that the information supporting probable cause was stronger than it was.
FBI Director Christopher Wray has vowed that this abuse of the FISA process will result in changes at the FBI, which is laudable, but it is important to recognize that it had no bearing on the investigation. The first FISA warrant was obtained in October, and therefore could not have influenced the case opening three months earlier in July. In addition, the remedy for false information in a warrant is to delete the offending language, and if the remaining information is insufficient to establish probable cause, to suppress the evidence obtained with that warrant.
The bottom line is that these FISA problems do not exonerate the target or taint the rest of the information uncovered in the investigation. Barr’s focus on them muddles misconduct by lower level employees with decisions by FBI and DOJ leaders, whom he has previously suggested have a “Praetorian guard mentality” that anyone with a different political opinion is an “enemy of the state.”
Barr has also said that he is not concerned about his legacy because “everyone dies.” Perhaps one who cared more about his reputation would make more effort to tell the whole truth.
Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, is a professor at the University of Michigan Law School and a member of USA TODAY’s Board of Contributors. Follow her on Twitter: @barbmcquade
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