The Real Significance of the FBI’s Probe Into Trump

The arresting New York Times headline last Friday—“F.B.I. Opened Inquiry Into Whether Trump Was Secretly Working on Behalf of Russia”—sparked a strangely bifurcated reaction. A bombshell to some, a dud to others, the story has had lots of people scratching their heads: What does it even mean?

The confusion is understandable, as is the debate over the significance of this deceptively complex and nuanced report—a story that, through no fault of reporters Adam Goldman, Michael Schmidt, and Nicholas Fandos, remains incomplete in key respects.

“My concern with the story,” Goldman told The New Yorker’s Isaac Chotiner, “was that it felt, to some extent, like a ‘duh’ story.” It was, after all, already well known that Special Counsel Robert Mueller was conducting a counterintelligence investigation of links between Donald Trump’s campaign and the Russian government, and there was plenty of evidence already in the public record of the president’s alarming behavior with respect to Vladimir Putin. It was also nothing new that Mueller was investigating obstruction of justice in connection with the president’s interactions with law enforcement. We’ve known that ever since The Washington Post reported it back on June 14, 2017.

Read: Donald Trump’s pattern of deference to the Kremlin is clear

And so it seemed to some readers that the story was what the president’s former lawyer John Dowd once referred to as a “nothingburger,” simply reiterating a bunch of things that everyone had already known to be the case. “It’s a huge story,” wrote our colleague Marty Lederman, “the biggest in decades. But it’s been the story for close to two years.”

At the same time, other commentators treated the Times’ scoop as a very big deal indeed—perhaps the biggest deal yet over the course of all reporting on the links between the Trump team and the Russian government. “Manchurian Candidate?” tweeted the former FBI counterintelligence official Frank Figliuzzi. He was far from alone in invoking the thriller famous for its depiction of a Communist conspiracy to install a sleeper agent at the helm of American government. More generally, the notion that the president had been individually designated as a counterintelligence subject burned up cable news and was so explosive that no less a figure than former U.S. Attorney Preet Bharara expressed doubt on his podcast about whether the reporting was even true.

So how should readers understand the Times’ reporting—as a story that changes nothing or one that changes everything? In many ways, it confirms what was already known. But in one crucial respect, its revelations might prove explosive.

No one should be reading the Times story as proof positive that the president of the United States is a Russian agent—or even that the FBI believed he was one. The so-called predication standards for opening an investigation in the first instance are not high, and the story thus might say more about what was going on in the FBI and how the institution understood the evidence in the chaotic period after James Comey’s firing than it does about Trump’s relationship with Russia. Moreover, the investigation the FBI opened into Trump  lasted only a few days before being folded into the purview of the suddenly created Office of Special Counsel. How Mueller understands any possible counterintelligence risk that Trump might pose after a year and a half of investigating is a wholly different question from the FBI’s concerns that might have sparked the inquiry in the first place.

More generally, there is an emperor-has-no-clothes quality to a story reporting that the FBI developed anxieties about the president conducting himself in a fashion that threatened national security—because of course it did. By the spring of 2017, anyone who had not come to understand that Trump’s presidency posed national-security risks was simply not paying attention.

Read: Bill Barr breaks with Trump on the Mueller probe

As far back as December 2015, the former State Department legal adviser John Bellinger argued on Lawfare that “not only does [Trump] lack the national security and foreign policy qualifications to be President, he is actually endangering our national security right now by his hate-filled and divisive rhetoric.” The piece bore the headline “Donald Trump Is a Danger to Our National Security.” Following up a few months later, one of us wrote in March 2016 that Trump’s candidacy represented “a toxic brew that I have no doubt makes this country less secure.” That article was headlined “Trump as National Security Threat.”

By the time the FBI formally opened a combined counterintelligence and criminal inquiry, following Trump’s dismissal of Comey in May 2017, a lot of water had flowed under the bridge. As a candidate, the president suggested in a public speech that the Russian government should hack and publicize the private communications of his political opponent. After taking office, he demanded loyalty from Comey and requested that the FBI director “let go” the investigation into former National-Security Adviser Michael Flynn, who by that point Trump had fired for lying about his communications with the Russian ambassador. Within the FBI itself, a broader counterintelligence investigation into possible coordination between the Trump campaign and the Russian government was well under way, having begun in the last days of July 2016. And then the president fired the FBI director after drafting a never-sent letter specifically mentioning the Russia investigation, proceeding to announce on television that he had done so with “this Russia thing with Trump and Russia” on his mind.

At the same time, writing off the Times story as mere confirmation of what was already known underestimates the magnitude of the FBI’s bureaucratic step: the decision to open a counterintelligence investigation into the president. There is, after all, something very new in the story. As Goldman noted to Chotiner, he and his colleagues reported for the first time that “the F.B.I. had specifically started looking at Trump” himself in a counterintelligence context—as opposed to taking a broader look at his associates or Russian activity—“and whether he wittingly or unwittingly had been working with a hostile foreign power.” The bureau had done so partly in response to Trump’s firing of Comey, an action that the president declared to NBC’s Lester Holt he had taken with the Russia investigation on his mind.

This step is a big deal. Remember that Comey had specifically reassured the president on several occasions that he was not personally under investigation, a fact that Trump stressed in the dismissal note he sent the FBI director. The folks who were running the bureau in the wake of Comey’s firing were not idiots. They were undoubtedly aware, with Trump proclaiming loudly that he was not an investigative subject, how explosive it would be to designate him as one. They were also undoubtedly aware that doing so would spark claims of a “deep state” coup. Yet they did it anyway.

Read: The dueling narratives on Trump and Russia

Indeed, it is one thing to understand generically that there is something fishy going on in terms of Trump’s relationship with the Russian government, to understand that the FBI is looking at the relationship between the Russians and his campaign, and to understand that the president’s actions with respect to law enforcement are being scrutinized as possible obstructions of justice. It is quite another thing to learn that the FBI actually took the investigative step of identifying the president personally—not just his campaign or his associates—as the focus of a counterintelligence probe.

And the step is, in fact, highly controversial even among those with deep expertise in national-security law and investigations. On Lawfare alone, we have seen a vibrant debate on the subject. The former Justice Department national-security chief David Kris sees the FBI’s action as a natural, perhaps inevitable, reflection of the state of the evidence at the time, writing, “Although I find the president’s behavior shocking, I am not shocked, or at least not surprised, at the FBI’s investigative response.” By contrast, Jack Goldsmith—who ran the Office of Legal Counsel at the Justice Department—describes it as “premised on an inversion of the normal assumptions of Article II of the Constitution.” And Stewart Baker, who was general counsel at the National Security Agency and a policy guru at the Department of Homeland Security, saw in the Times story the long shadow of former FBI Director J. Edgar Hoover, writing of the bureau, “There is only one American agency with a history of destroying American politicians to serve its own bureaucratic interests.”

There are important uncertainties remaining here regarding what precisely happened. It is not entirely clear from the Times’ story what exact step the FBI took when it opened this matter, and what taking that step might have allowed it to do—if anything. As Goldsmith writes, it’s not clear whether the bureau’s action fulfilled some practical investigative need or whether it was “just a formal bureaucratic step on which nothing of substance turned.” The action might, indeed, have been mostly an administrative matter, fulfilling some expectation that the FBI doesn’t investigate a domestic party without first opening an investigative file based on an appropriate factual predicate. What’s more, the relationship between the counterintelligence and criminal elements of what the Times contends was a two-pronged investigative predicate remains murky. Was the FBI’s principal concern criminal, or was its principal concern that the president’s actions posed a national-security threat?

This last question is a crucial one, and it bears directly on what we should expect from Mueller when his much-awaited report materializes. The public has long known that the Mueller investigation is composed of both counterintelligence and criminal strands, and that Mueller inherited both from the FBI’s initial investigation. But this story should change the way we understand the relationship between the so-called collusion components of the investigation and the obstruction components. Specifically, as one of us argued the evening the Times story broke, the overlap between the portion of the investigation focused on obstruction of justice and the portion focused on “collusion” may be much greater than previously understood.

If Mueller shares the concerns he inherited from the initial FBI investigation into Trump, his report might be expected to address Trump’s interactions with law enforcement, including the firing of Comey and subsequent events, not only as possible discrete violations of the obstruction of justice statutes, but also as part of a pattern of suspicious activity on the part of Trump and those close to him that effectively supported Russian intelligence objectives. To be clear, we do not know that Mueller is heading in this direction; but the Times story raises the likelihood that he would have at least thought about the matter in these terms.

That, too, is new. Many commentators, ourselves among them, have long speculated on the extent to which the counterintelligence investigation may have come to focus on the president himself. And there was never any doubt that the obstruction investigation was focused on presidential action. But we are not aware of any reporting specifically indicating that the obstruction components of the investigation were actually being considered, either by the FBI or Mueller, in a counterintelligence context.

What does it all mean? As with so much of L’Affaire Russe, it is too early to tell. It’s possible that the importance of this story is almost entirely historical, that it reflects merely how the FBI understood things in the critical few days between Comey’s firing and Mueller’s appointment, and that it says little about Mueller’s current thinking or the direction the evidence ultimately took him.

It is also possible, however, that the information provided by the Times is quite important to understanding the investigative arc, as opposed to the journalistic focus, of the Russia probe’s development. That is, it’s possible that while journalists and legal scholars have been wringing their hands about whether the president committed crimes and about a hundred different threads of possible corruption, Mueller has been focused single-mindedly on Russian activity during the 2016 election and coordination with, or support of, that activity on the U.S. side, including efforts by the president to prevent its investigation.

It’s possible, as former FBI General Counsel James Baker put it in his testimony last October, that the investigation “was about Russia. Full stop. It was always about Russia.”