Judicial Conversations: Inside DOJ and FBI: Anatomy of a bloodless coup?

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The word “coup” evokes imagery of bloody revolution, but does a coup have to be bloody, or even happen all at once? What if, instead, a bloodless, rolling coup started with a snowball and ended with an avalanche? Many believe this very thing happened in 2016, with a small political cabal determined to see Hillary Clinton elected president. When she was defeated, the theory goes, they worked even harder to try to bring her hated opponent, Donald Trump, down by any means necessary — even if this caused much of the American public to believe the president of the United States is the tool of a foreign adversary.

Is this theory merely the fevered dream of tinfoil-hat-wearing types, or could such a cabal have existed with the kind of power to instigate such a plot? With special counsel Robert Mueller’s investigation apparently close to winding down, it is useful to analyze the underpinnings of the Trump-Russia collusion accusation that started it all.

Which theory is more plausible, based on how DOJ and the FBI operate? A review of what happened holds the answer.

By March 2016, it was clear Trump would become the Republican nominee. The Russians hacked Democratic National Committee (DNC) servers to gain access to Clinton campaign emails. Two months later, the DNC hired a law firm that retained Fusion GPS and ex-British spy Christopher Steele to conduct opposition research on Trump. Steele was a confidential FBI informant and friend of former Associate Deputy Attorney General Bruce Ohr, who oversaw drug and organized crime and had no role in intelligence or national security matters.

In early July 2016, Steele alerted the FBI about details in his dossier of allegations (ultimately paid for by the Clinton campaign). He accused Trump and the Russians of an extensive conspiracy to throw the election. On July 30, over breakfast, Steele asked Bruce Ohr to share his dossier with the FBI. Ohr later noted that Steele made clear he wanted to stop a Trump presidency from happening. This obvious bias should have encouraged a seasoned prosecutor’s caution about the veracity of the allegations, yet Ohr used his position at DOJ to share Steele’s allegations with then-FBI Deputy Director Andrew McCabe.

That interaction, in particular, was a shocking lapse of protocol. Ohr worked directly for the deputy attorney general, but when given information that a presidential candidate might have been compromised by the Russians, he failed to alert anyone in his chain of command. DOJ is a chain of command-oriented place. Why didn’t Ohr tell his boss that the possible next president of the United States represented a threat to national security?

Ohr wasn’t an expert on intelligence or national security, but someone in the office was. Yet Ohr testified to Congress that he did not seek out anyone on staff — not his boss, nor any of her advisers — to brief them about this sensitive but potentially catastrophic information. Again, why not?

Ohr has said he subsequently shared the information with three other DOJ employees, but none was in his chain of command, or even in the deputy AG’s office. (Two of them subsequently — coincidentally? — joined Mueller’s Russia collusion investigation.)

It’s hard to understand Ohr’s actions. DOJ has strict protocols for investigating politicians; rule one is to notify your chain of command. Instead, Ohr encouraged the FBI to investigate. And so, it appears that DOJ abdicated its role as neutral arbiter.

But what about the FBI? On July 31, 2016, one day after Ohr reached out to McCabe, Strzok opened a counterintelligence matter dubbed “Crossfire Hurricane” to look into the Trump-Russia allegations. What was the basis for this unprecedented action against a presidential campaign? Was it merely Steele’s dossier, containing allegations that former FBI Director James Comey later acknowledged were unverified? We now know the FBI in October 2016 used this dossier, in part, to convince a judge there was probable cause to believe Trump campaign volunteer Carter Page was engaged in criminal activity on behalf of Russia and should be covertly surveilled.

It’s not unusual to use informants such as Steele to obtain search and arrest warrants. When an informant’s word is used to secure such warrants, however, the case agent must assure the judge that the informant is reliable. Reliable informants generally have firsthand information, but the Steele dossier stands in stark contrast: It relied upon unnamed sources in Russia for information. Investigators should have tried to establish the veracity of those sources. Yet, as Comey has admitted, those efforts either were not made or were unsuccessful.

This lends credence to those who argue the FBI ignored protocols for partisan political ends. First, efforts were made to prevent Trump from winning the White House (high-level leaking of information ensured the Russia collusion investigation became public before the election). Second, surveillance and leaks continued until after the president’s inauguration — leading to talk that he should not be inaugurated, or should resign shortly thereafter.

All of these facts appear to show the “collusion” investigation was begun by those with apparent political motives and complete disregard for protocols. This suggests that, indeed, a small political faction inside the U.S. government attempted to sway a presidential election — and used our country’s counterintelligence assets to do it.

Francey Hakes was a prosecutor for 16 years and now consults on national security and the protection of children. As a former assistant U.S. attorney, she appeared before the Foreign Intelligence Surveillance Court, presenting applications for counterterrorism and counterespionage warrants on a special detail to the Department of Justice Office of Intelligence Policy and Review. Follow her on Twitter @FranceyHakes.