The Peril of Taking on the FBI

For more than two weeks, the Trump White House has engaged in an unprecedented assault on the president’s own Justice Department, and in particular on Deputy Attorney General Rod Rosenstein and the FBI. On Wednesday, the targets of that assault started firing back.

The apparent catalyst is a memo, prepared at the behest of House Intelligence Committee Chairman Devin Nunes, that is said to allege inappropriate use of a dossier, compiled by former British intelligence officer Christopher Steele, in securing a warrant to surveil former Trump campaign foreign-policy adviser Carter Page. On Monday, the committee voted along partisan lines to release the memo, and the White House now has a chance to review the release.

The DOJ and FBI have both strenuously argued in private that the memo is factually wrong, because it leaves out key points; that it is misleading, because it is decoupled from the intelligence that feeds it; and that it would recklessly reveal classified information. On Monday, according to The Washington Post, Rosenstein and FBI Director Christopher Wray went to the White House to campaign against release.

On Wednesday, the FBI went farther, releasing a highly unusual, unsigned public statement arguing against release. Saying that the FBI takes cooperation with congressional overseers seriously, it nonetheless laid down its flat opposition to releasing the memo.

“The FBI was provided a limited opportunity to review this memo the day before the committee voted to release it,” the statement said. “As expressed during our initial review, we have grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.”

In publicly making this blunt statement, the FBI places itself on a collision course with the White House. The president, hoping the memo will vindicate him or at least undermine the investigation into his campaign’s ties to Russia, seems disposed to release it. Although the White House says he has not yet read it, Trump was overheard on a hot mic after the State of the Union telling a Republican congressman who asked him to release it, “Don’t worry. One-hundred percent.” Wednesday’s statement looks like a last-ditch effort to convince the White House, but if it doesn’t work, the rift will be clear. Wray risks making himself the second FBI director Trump fires.

The statement was not, however, the last major news on the Nunes beat for the day. Later on Wednesday, CNN reported that in December, as the Justice Department tried to push back on demands for documents from Nunes, Rosenstein visited the White House to ask Trump’s assistance. Ordinarily, such a request would be handled simply. Presidents tend to try to defend the prerogatives of the executive branch, and especially the Justice Department and FBI. But Trump is angry about Robert Mueller’s special-counsel probe and the FBI’s poking into his campaign, and Rosenstein commissioned Mueller; Trump has also publicly and privately expressed anger about Rosenstein, falsely claiming he is a Democrat, even though Trump appointed him. Rosenstein was also preparing for important testimony at the Capitol. Nunes, meanwhile, was a member of the Trump transition team and previously colluded with White House aides on an accusation of intelligence overreach by the Obama administration.

According to CNN, citing “sources familiar with the meeting,” Trump asked Rosenstein if he was “on my team.” Rosenstein reportedly seemed surprised, but replied, “Of course, we’re all on your team, Mr. President.”

It’s a mysterious episode, but Trump has a history of asking questions of aides that seem to demand personal loyalty, even of those charged with upholding laws. Fired FBI Director James Comey testified under oath that Trump asked him for loyalty in January 2017. At a May meeting, Trump reportedly asked Comey’s deputy, Andrew McCabe, who became acting director of the FBI, who he had voted for in the 2016 election. It’s surprising that Rosenstein would have been surprised to be asked such a question. (When Rosenstein appeared before Congress, he defended Mueller, whom he oversees, and said he approved of the job the special counsel was doing.)

Then CNN dropped another big story about FBI agent Peter Strzok, who has been accused of conspiring to hurt Trump’s campaign; the president has (appallingly) accused him of treason, because he was critical of a presidential candidate in his private communications. The accusations stem from texts that Strzok exchanged with his lover, an FBI lawyer, in which they were critical of Trump, though also critical of Hillary Clinton. There has not yet been any evidence that Strzok affected the course of investigations into either Trump or Clinton.

The new story changes that, a bit: Emails obtained by CNN indicate Strzok wrote the first draft of a letter that Comey sent to Congress on October 28, 2016, informing members that the FBI was reopening an investigation into Clinton based on emails newly found on Anthony Weiner’s computer. Strzok “also supported reopening the Clinton investigation once the emails were discovered on disgraced former Rep. Anthony Weiner’s laptop, according to a source familiar with Strzok’s thinking,” CNN said. The revelation further undermines the story of Strzok leading some sort of resistance cell to Trump inside the FBI—though the Strzok texts, in their entirety, never really supported that narrative either.

Yet if that story undermines a theory of preelection conspiracy, the FBI statement and then the two news stories, taken together, suggest a current conspiracy against the president—as my colleague David Frum put it on Twitter, “Never start a leak war against the FBI.” It’s impossible to say for sure that’s what’s at play here, but it is the case that there are people at DOJ who would both be in a position to leak these stories to the press, and who would have a motivation for throwing a brushback pitch at the White House.

It is also the case that people in the bureaucracy have used leaks to get back at those who cross them. Most famously, former FBI Director L. Patrick Gray speculated that Mark Felt, the FBI deputy director, leaked Watergate revelations to The Washington Post under the name Deep Throat because he was upset at being passed over for the top job at the bureau.

That idea is always faintly nauseating. Leaks are an essential part of keeping American democracy functioning, but it’s also dangerous for law enforcement (or anyone else) to be able to railroad elected officials. Often the line between whistleblowing and political retaliation is thin or doesn’t exist at all. Felt’s motives may have been impure; then again, Nixon’s misdeeds were very serious and the public needed to know. More recently, leaks that revealed that then-National-Security Adviser Michael Flynn had lied to FBI agents were unprecedented; yet Flynn did lie, both to the vice president and the public. He has since pleaded guilty to lying and is cooperating with Mueller.

This isn’t how any of this is supposed to work. Everyone is misbehaving. A man who campaigned for president as the candidate of “law and order” is sprinting headlong into releasing a memo that the head of the FBI—Trump’s own hand-picked director—and the deputy attorney general, another Trump pick, believe could mislead the public and damage law enforcement. Meanwhile, there’s a real possibility that Trump’s attacks on the FBI and Justice Department have inspired retaliatory leaks, meaning that the president would have effectively elicited just the deep-state conspiracy against him that he alleged in the first place.

The White House’s assault on Justice and the FBI has long been premised on being able to an asymmetric war: Trump and his allies can make claims or even release the memo, but DOJ, bound by concerns about classified information, is hobbled from rebutting the memo. But many of the claims laid out by Trump champions make little or no sense.

In the past, Nunes has alleged that the Obama administration conducted improper, politically motivated investigation of Trump aides. The current Nunes memo reportedly claims that Rosenstein improperly approved a warrant application that made use of the Steele dossier. We have no way of knowing whether that accusation is true or not (and there are some reasons to doubt it), but the implication is that Rosenstein, a Republican Trump appointee, is somehow part of the same Clintonite-Democratic-Obama administration plot against Trump.

The contradictions don’t end there. When Trump fired Comey, he released a memo, written by Rosenstein, which criticized Comey for having spoken publicly about the Clinton investigation in the run-up to the election—a violation of DOJ guidelines that counsel caution about taking steps that might be seen as interfering in the election. Yet after McCabe was forced into early retirement on Monday, the Post reported a focus on whether McCabe had slow-walked the investigation of Clinton. In other words, FBI employees have now been forced out of their jobs both for being too aggressive in investigating Clinton and for not being aggressive enough.

That is not the most glaring contradiction involving the Clinton investigation. Trump sees the FBI, a historically conservative organization, as conducting a long conspiracy to prevent him from taking office, and then to delegitimize him once he entered office. During the election, however, some FBI employees were leaking anti-Clinton information, including to Trump adviser Rudy Giuliani. (The inspector general is investigating preelection leaks.)

Even more to the point, the FBI released the October 28 Comey letter, which likely cost Clinton the election. Even if that was not the intention, Trump is now engaged in hand-to-hand combat with the very organization that likely clinched his victory. In an increasingly energetic attempt to discredit the investigations that are targeting him, especially the Mueller probe, Trump is not discriminating about his targets.

The question is less whether Rosenstein or any other individual views himself as on the president’s team, but whether the president sees them as members of the opposing team.