What Did Mike Pompeo Do?

Reports that Trump asked intelligence chiefs to help shut down the investigation into Michael Flynn raise the question of whether the CIA director was asked to do the same, and how he reacted if he was.

Aaron Bernstein / Reuters

Mike Pompeo, the director of the Central Intelligence Agency, was in the room with Director of National Intelligence Dan Coats in March when President Trump complained about then-FBI Director James Comey’s handling of the investigation into Michael Flynn, Trump’s former national security adviser, The Washington Post reported Tuesday.

Coats, the Post reported, later told subordinates that the president had asked him to intercede with Comey to end the Flynn investigation. The report also said that Coats had rejected the request as inappropriate. Comey had recently testified that the bureau’s investigation into Russian interference in the 2016 election had begun to scrutinize ties between Trump campaign officials and the Russian government. Flynn was forced out after reports revealed that he had misled administration officials about whether he had discussed sanctions against Russia with that country’s ambassador, Sergey Kislyak, prior to the inauguration.

Yet Pompeo’s role in this episode remains a mystery—whether he was also asked to intervene with Comey to end the investigation, and whether he, like Coats, rejected that request as inappropriate. I posed that exact question to the CIA, a spokesperson declined to comment.

"The CIA is very aware that the FBI has the primary role in counterintelligence in the United States, and that it would not be appropriate for the agency to interfere or try to direct the FBI's investigation," said a former senior intelligence official.

Vicki Divoll, a former Senate intelligence committee general counsel and assistant general counsel for the CIA, was unambiguous about the advice she would give if CIA director she was working was asked by a president to encourage the FBI Director to shut down an investigation into associates of that president.

"I would tell my boss that the request was inappropriate and not to act on it. it's as simple as that," said Divoll. "Then we would need to discuss whether we had a statutory obligation to make a crimes report to the Justice Department and to notify the intelligence committees of Congress."

Several former intelligence officials said that they had never seen a president ask an intelligence agency chief to intervene to stop a federal investigation into the associates of that president. Such a request might be construed as an effort to obstruct justice; CIA officials are bound by law to report potential crimes to the FBI.

By publicly admitting that the Russia investigation played a role in his decision to fire Comey, and by asking intelligence officials to help him intervene, Trump has raised questions about whether he attempted to shut down a federal investigation. Even if he did, though, it’s unclear whether a sitting president could be prosecuted for obstruction, or whether impeachment would be the only means of legal accountability.

“At least since the Nixon administration and the Watergate investigation, there has been common agreement and understanding throughout the federal government that federal criminal investigations of potential executive-branch wrongdoing should proceed independently of the president and of executive-branch officials generally,” Bruce Green, a former assistant counsel on the Iran-Contra affair and a law professor at Fordham, wrote in an email. “Given the presumption of innocence, one might presume (absent compelling contrary evidence) that the president acted from lawful motives.  On the other hand, if the president had ‘corrupt intent’ under the obstruction-of-justice law, he probably committed a crime and an impeachable defense.”

Part of the difficulty with prosecuting obstruction of justice is that it turns on “corrupt intent,” that is, intent to break a law. If Pompeo received a request to intercede with Comey and refused it like Coats reportedly did, he would be in the clear. On the other hand, if he received and later acted on such a request, much would depend on whether he could be said to have acted with “corrupt intent.”

Congress is supposed to be a check on  political interference with intelligence gathering and law enforcement. Divoll recalled a controversy on the intelligence committee after then-Vice President Dick Cheney made what The New Republic described as “unusual visits” to Langley in 2002 that were seen as an effort to pressure Agency analysts to provide information to support the administration’s case for war in Iraq.

"That was bad, this is inconceivable, because not only is he trying to influence intelligence, but he's trying to influence law enforcement, and try to get intelligence to influence law enforcement," said Divoll. "Politics and intelligence don't mix, and politics and law enforcement don't mix."

During a heated Senate intelligence committee hearing Wednesday, top officials, including Deputy Attorney General Rod Rosenstein, acting FBI chief Sean McCabe, Mike Rogers, director of the National Security Agency, and Coats himself, refused to answer openly whether the White House had asked them to interfere in an investigation. In response to a query from Florida Republican Senator Marco Rubio about whether he had “been asked by the president or the White House to influence an ongoing investigation,” Coats replied, “I'm not going to go down that road in a public forum.”

There is at least one historical precedent for a sitting president attempting to use the CIA to pressure the FBI to end an investigation. In the middle of the Watergate scandal, President Richard Nixon asked Deputy CIA Director Vernon Walters to imply that the break-in to the Democratic headquarters, carried out by Nixon cronies, had been an agency operation, in an effort to get the bureau to back off. When the House Judiciary Committee drew up articles of impeachment against Nixon in 1974, “endeavouring to misuse the Central Intelligence Agency” was among them.

Divoll told me that if Pompeo was asked to intervene with the FBI, it was a clear cut case of wrongdoing.

“It's hard to explain to people that the sky is blue," said Divoll, because it’s supposed to be obvious. "The sky is blue and this wrong."