About a week ago, FBI Director James Comey went before the Senate Intelligence Committee to testify on two FBI investigations: one of Hillary Clinton and her emails, and another of Russian meddling in the 2016 election and any connections the Trump campaign may have had to the Russians. The former investigation was conducted and closed amid much public scrutiny and controversy. The second, no less controversial investigation is ongoing, but Comey refused to go into it in detail. And this Tuesday, Comey was fired, having never wrapped up the second investigation.
So what happens to that still unfinished Russia investigation? “The short answer is that no one knows,” said Susan Hennessey, the managing editor of the Lawfare blog and a former intelligence community lawyer. (The FBI’s investigation runs parallel to at least two other investigations, one in the Senate and one in the House, looking into similar questions.) The signs, however, are not encouraging. The abrupt and strange way Comey was fired, as well as the lack of a nominee to replace him, “is a very political decision, and the message it sends seems to be to back off the investigation,” said Amy Zegart, the co-director for Stanford’s Center for International Security and Cooperation and senior fellow at the conservative Hoover Institution.
If that’s the case, there are many ways the bureau could “back off” without actually looking like it has backed off or even stopped investigating Russian interference. According to the former FBI agent Clinton Watts, the limbs of the beheaded bureau will keep doing their work. “The investigative part is independent,” said Watts. But even if the work goes on, what will that work look like? “The investigation will go forward in the short run,” said Jack Goldsmith, a professor at Harvard Law School and an assistant attorney general under George W. Bush. “The question is how vigorous it will be.”
One factor that may determine the answer is money. According to multiple reports, which a spokeswoman from the Department of Justice denied, Comey had asked the department for more resources to pursue the Russia investigation right before he was fired. What happens to the FBI’s resources now? A new FBI director “can’t shut the investigation down,” said Watts, “but can decide how resources are allocated and how time is spent.” Eric Columbus served from 2009 to 2014 in the office of the deputy attorney general—a position now occupied by Rod Rosenstein, whose letter describing Comey’s handling of the Clinton email investigation was cited by Trump as the reason for Comey’s dismissal. Columbus said that though a new director would have the legal authority to shut the Russia investigation down, “the smarter ploy would be to slow walk it and starve it of resources and not have it be the focus of leadership. … You can investigate things forever and have it never go anywhere. If you want to kill something, the most effective way to kill it is to just have it on a slow simmer rather than a rolling boil.”
In other words, the investigation could keep going but be so starved of money and manpower that it is not much of an investigation at all. “There could be a new FBI director who is less inclined to expend resources on this issue,” said Columbus. “Lord knows there are plenty of things for the FBI to investigate and they never have enough time and money, and a new director could decide to shift resources away or to keep resources flat when the need is for more.” So until a new director is nominated and confirmed, the bureau’s Russia investigation will likely go on roughly as before, but it now seems highly unlikely that it will get the extra resources Comey reportedly asked for—that’s the flatlining scenario described by Columbus. Once a new director is appointed, though, there is no guarantee that the amount of resources would even stay flat. They could experience a sudden drop off.
But it’s more than just shutting off the flow of money that could sap the investigation of its lifeblood. “There are many ways you can slow roll the investigation,” says Zegart. “You can slow roll it by hindering access to personnel, requiring formal legal procedures like subpoenas. The strongest interest in Washington is the status quo—that’s the natural inclination—and an investigation is easier to slow down than to speed up.”
The question of resources allotted to the FBI also affects the parallel investigations of the same questions happening in the House and Senate. Earlier this spring, Representative Adam Schiff, the ranking Democrat on the House Intelligence Committee, complained to me that he was having a hard time getting the bureau to cooperate. The House investigation “requires the FBI to be fully cooperative,” he said. “We don’t have that yet. It’s not their culture.” That was when the bureau was headed by someone who seemed willing and eager to investigate the Russia question. What happens if Comey is replaced with someone who isn’t, and isn’t willing to adequately fund an investigative staff already stretched thin? “It was tricky from the get-go,” said a senior Republican Senate staffer. The Senate Intelligence Committee “is doing the same thing as the FBI but don’t have all the resources at their disposal. It doesn’t have the resources to do the same amount of work as the FBI. This thing has always been a little bit awkward.”
But assuming that the bureau’s Russia investigation does get the necessary resources, there is still the question of what happens with whatever its agents turn up. “Who do you present your findings to?” asked Watts. “It’s the DOJ that decides whether to bring charges. But it seems to be very political under this new administration. You have to wonder how the FBI feels about presenting those findings to the DOJ when it’s run by [Attorney General Jeff] Sessions, who recused himself from the [Russia] investigation, but endorsed Comey’s firing.” That leaves Rosenstein. “The fate of the investigation—its independence and integrity—now lies with Rosenstein,” says Goldsmith. “He has a reputation for independence, but the orchestrated action on Tuesday will call that into question for many people.”
With Comey’s dismissal, said Goldsmith, “the investigation now lacks the one person in the executive branch that we know was acting as an independent agent in this mess.” As Zegart noted, “the integral role that the director plays is maintaining the integrity of the investigation and to make sure it’s shielded from political interference. We kind of take the FBI’s professionalism and independence for granted now, but half of FBI’s life was under J. Edgar Hoover. It was intensely politicized, and it got the FBI into a lot of trouble. For half of its bureaucratic existence, the FBI has not been independent.”
Democrats are calling for a more politically independent body to investigate the matter—be that a special prosecutor or a select congressional committee—but a special prosecutor, too, would run up against questions of resources. A special prosecutor, says Columbus, “would have a lot of running room but would still need to work with FBI and be reliant on their investigative work. Lawyers don’t go and dig up this stuff, they instruct people to dig up for them.” And those people are usually in the FBI.
It is still unclear if Trump fired Comey with the express purpose of stymying the FBI’s investigation into Russia’s malfeasance and his campaign’s potential participation in it, but the president’s political opponents are calling on him to keep the investigation running even more robustly in order to prove it is not so. “If you believe the president did nothing wrong, that is all the more reason why you should want an independent prosecutor,” said Democratic Senator Richard Blumenthal, who sits on the Senate Judiciary Committee's Subcommittee on Crime and Terrorism, which this week held a hearing on Russian interference. “Then a decision against prosecuting the president would be all the more plausible.”
But Republicans know well that the mere fact of an investigation’s existence is a potent political toxin. They employed it with four separate investigations into Clinton’s role in four American deaths in Benghazi in 2012. Those investigations didn’t find evidence of wrongdoing by Clinton with respect to Benghazi, but they kept a constant hum of suspicion around the secretary. As a result, many Americans I met on the campaign trail couldn’t tell you exactly what Clinton had done in Benghazi, but they felt certain it was bad, maybe even murderous. Having three Russia investigations hanging over the head of a Republican president saddles him with an air of illegitimacy, further squandering the precious political capital they need to pass an ambitious legislative agenda. Conversely, Republicans must also know that the mere existence of doubt about the integrity—let alone the longevity—of an investigation is a potent poison, too.
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