Trump versus the Intelligence Community
Who Guards the Guardians?
On November 10, 2016, as the country reeled from the surprising election of Donald Trump, Obama sat with the new President-elect to discuss a peaceful transition of power. One piece of advice he gave was rather specific: don’t hire Michael Flynn as your National Security Advisor.
Eight days later, Trump announced that he intended to do just that.
The following month, in mid-December, The Washington Post received an anonymous letter. We learned of the existence of this letter Friday night. The Post did not not release it in full, but reporters did mention it as a source of information regarding Jared Kushner’s attempts to set-up a secret backchannel between himself and the Russian government. Like any source, it was in need of independent confirmation. Accordingly:
This is a startling paragraph. After all, the letter effectively leaked the highest order of classified information, yet the Post reporters showed no fear of potentially compromising a source when sharing it with “officials” who could presumably glean details regarding its origin. Especially in light of recent attempts to pressure journalists to reveal sources, not to mention the White House’s declared intent to prosecute leakers to the fullest possible extent, the decision made by the Post to share this letter with parties who were in a position to confirm it is extraordinary.
Several scenarios are possible. Perhaps the Post simply felt the letter was untraceable, or that they had no responsibilities to shield the author of an anonymous letter because they had not asked for it or given any assurances in exchange for it. That’s a big gamble to play in the era of President Donald Trump, as news media beg for anonymous leaks. If they make an error, and the intelligence community identifies and prosecutes the author of this letter, few will consider them a reliable repository for future leaks.
Another possibility is that the Post judged the leak to be political and not criminal in nature — that is, the letter came from Flynn (or Kushner), or an as-yet-to-be-identified attendee of the meeting. This person will have disclosed secrets, and possibly violated a Trump campaign confidentiality agreement, but she would not have run afoul of criminal law. Though possible, this scenario suffers from a timing problem. Flynn might feel like betraying Trump now, after being fired, but most likely he did not feel that way on or around December 10. Ditto anyone else present for the meeting on behalf of the Trump campaign.
In the end, the most reasonable scenarios boil down to two basic explanations: the “officials” who reviewed the letter for the Post were either not in a position to prosecute leakers (they are retired; they belong to an agency that does not have enforcement power; or they belong to a foreign intelligence service) or, in one way or another, the “officials” and the source are allied or one in the same. That the Post would disregard the potential for prosecution if their reviewing officials are retired or non-enforcement is unlikely; either could refer information to a criminal inquiry, or be compelled to do so. No doubt the Post would shield the identity of its “confirmers” as closely as they would their source, but the circle of US citizens who would even be in a position to confirm such material is so finite that it is grounds for reasonable suspicion in and of itself. In the category of “not in a position to prosecute leaks,” I would rank a foreign entity as the best explanation, and within that, I would consider the Russians, the United Kingdom, or an EU-member country as the most likely.
There is no reason to take a foreign intelligence explanation off the table; it holds water. But I want to set it aside for the moment, and sketch out more fully the second scenario: that the confirmers and the leakers are essentially the same party. In some loose sense, this is true no matter which of the two best scenarios is correct. What I mean is: the letter came from someone in the meeting or privy to highly classified intelligence, but only those privy to intelligence can confirm the accuracy of the information in it (note the Post’s use of the word “officials,” plural). So this letter was not just a leak, it was an implicit contract of employment: it effectively hired The Washington Post to the intelligence community. After all, armed with this letter, the Post really had nothing it all. They had a source but no story, and no way of telling it without the assistance of members of the intelligence community who were, themselves, willing to “leak” by confirming details of a classified investigation. Given that, the remaining question is whether this enrollment of the Post as a platform for the intelligence community came as the result of a coordinated strategy or by happenstance — and, if the former, whether this plan was hatched among a small group, within one agency, or even in the same country.
We don’t have the letter, but we do have some context surrounding it. Let’s walk back a few steps before the letter was sent, to President Obama’s warning to Trump on General Flynn. What prompted that? The Obama administration had fired Flynn from his position in the Defense Department over “temperamental” issues, but could Obama’s disapproval of Flynn’s management style really reach such heights so as to merit a specific condemnation during a meeting to discuss a peaceful transition of power?
Anything is possible, but to my mind it seems more likely that Obama had been in receipt of intelligence that Flynn had several ties to Russian interests close to Vladimir Putin, and probably his contract with Turkey was known as well. In other words, I don’t regard the rationale offered in The New Yorker piece that first revealed the Kushner-Kislyak meeting as plausible — that is, that Russia’s lack of interest in retaliating against Obama’s sanctions led intelligence agencies to review Kislyak’s contacts in greater detail, with the implication that then and only then did a disturbing picture come into view. Certainly Russia’s failure to act as anticipated may have provided a legal rationale or pretext for a domestic agency to handle information that was previously barred to them. But it is hard for me to believe that by itself, the decision not to respond to sanctions in kind would have generated a skepticism so great so as to launch a thousand investigative ships. Instead I think that Obama already knew something was rotten in the state of Denmark when he met with Trump, and in laying down the caution on Flynn, he was perhaps also setting up a test. Just how committed was this new administration to its tawdry and possibly traitorous assets?
The next week, Trump answered: pretty darn committed. While the announcement of Flynn’s nomination likely triggered real concern, the December 1st or 2nd meeting in Trump Tower which featured the “secret channel” discussion among Kislyak, Kushner, and Flynn (and, perhaps others we don’t yet know about) clearly set something in motion. How was the substance of this conversation made known to others? Possibly by listening in at the time; possibly from an as-yet-to-be-named attendee; and possibly from listening in on Kislyak or another attendee reporting on this conversation to someone else. (The last thing we know happened — Kislyak’s conversations with Russia is how the Post uncovered the distressing detail of Kushner suggesting use of secret Russian facilities in order to communicate — we just don’t know if those intercepts triggered the letter.) However the conversation was discovered, someone was deeply worried.
Days later, the Post received an anonymous letter: a map to the treasure, so to speak, that laid out information about Kushner, as the Post reported, and probably others as well. (For some reason, the letter does not name the date of the meeting with certainty, or someone in the chain of discovery has decided to obscure it. Strangely, the White House also has not confirmed the exact date of the meeting. See follow-up post: “Dangling Threads”)
And at that point, the Post’s bustling newsroom did absolutely nothing — because it could not do anything. According to Post reporter Adam Entous, the “letter just basically sat on our desks…until March,” when The New Yorker reported on Kislyak meeting, and The New York Times quickly followed suit. If the letter came from within the intelligence community or through its coordinated efforts, then that same community would remain in control of what could be confirmed, and when. Whether or not the intelligence community baited the hook and cast the line, they would be in control of how and when it would be reeled in.
On December 15, three days after the Post received the anonymous letter, the Director of National Intelligence, James Clapper, signed new rules liberalizing the National Security Agency’s ability to disseminate raw signals intelligence among government agencies when deemed necessary for foreign intelligence and counterintelligence purposes. Attorney General Loretta Lynch signed onto those rules on January 3rd. Reuters news agency reported Friday evening that “by early this year,” presumably a short time after the FBI gained access to signals intelligence, “Kushner had become a focus of the FBI investigation into whether there was any collusion between the Trump campaign and the Kremlin, said two other sources — one current and one former law enforcement official.” On January 26, Yates warned White House counsel that Flynn’s lies, and Vice President Pence’s repetition of them, rendered him vulnerable to blackmail. (See “Dangling Threads”) As Marcy Wheeler points out, Trump had dinner with then-FBI Director James Comey that evening, seeking assurances of his loyalty. He received none. Three months later, following Comey’s request for more resources for the investigation (See “Dangling Threads”), he was fired.
There is without question a story here — one that is being revealed in drips and drabs, and Friday night news dumps — but there is also a story about the story — which is either not discussed at all, or it is given a partisan gloss by Republicans of an authoritarian mindset who would sentence every leaker to prison (except their own). Neither approach becomes a democratic republic.
From my perspective, agents of the FBI perform a valuable public service in leaking the basic dimensions of their investigation to the American public before the installation of a new director who might move to quash the inquiry, or circumscribe it to near-irrelevance. But it serves no democratic purpose to receive intelligence leaks, and reprint them, without also raising the dilemma raised by Roman poet Juvenal: who will guard the guardians? This is not a question of safeguarding classified information, mindlessly following rules, as much as it is one of holding power accountable. Those two different standards of behavior overlap, but they are not interchangeable.
Let’s devote some brief analysis to the story, and then let’s do the same regarding “the story about the story.”
The Story
Russia’s attempts to influence the outcome of the election in favor of Trump via “active measures” were not very important in determining the outcome of the election itself. Loose language from Clinton partisans that Russia interfered with the “electoral process” is intended endow Trump’s activities, and that of his advisors, with a menace of suitable gravitas. But actually, as far as we know, Russia did little if anything to influence the result, and to my mind, it is actually extremely unhelpful to depict it as a villain to explain Hillary Clinton’s loss. Clinton loyalists prefer a narrative that absolves them, but jeopardizes much else — as is their wont.
Instead the story and basic culpability of the Trump campaign begins well before the election, even before Russian hacking, and extends beyond the election’s result. It is a story of an incompetent and uncaring campaign, allowing for all manner of interlopers, even some bent on infiltration. To vet Carter Page, for example, Trump campaign aides used what was for them standard operating procedure: a Google search. Not long afterward, Donald Trump cited Page as among the “foreign policy experts” the campaign had recruited to compensate for its lack of knowledge and experience. Paul Manafort’s screening was not much more rigorous; his chief appeal, according to Trump, was that he offered to work for free. This raised no questions at the time — and also appears to be false, in that Manafort went on a borrowing spree after he left the campaign, one which The New York Times has reported as financed by people related to Trump or the Russian-friendly Ukrainian oligarchs for whom Manafort had worked in the past.
The failure to vet important advisors, while routine for Trump, is totally unacceptable in a campaign to assume the powers of the presidency. But this would amount to merely reprehensible conduct, were it not for two other important developments: first, the Trump campaign accepted help gained from Russia’s “active measures”; and two, in an appalling case of running before you can walk, Kushner and other members of the Trump team communicated with Russian diplomats to discuss policy. Without certifying whether its own campaign was compromised — or caring enough to bother to check — Trump and his team ran headlong into fraught exchanges with a foreign power, and courted its assistance. They could not know if their own apparatus was capable of this level of exchange, and what’s worse, they just did not care.
The best comparison for this situation I can think of is the legal rationale behind the federal government’s settlement (brought under the thread of criminal charges) with Purdue Pharma, the makers of OxyContin. The theory being: you can sell highly addictive drugs (in this case, opioids), but you can’t market them aggressively; and if you choose to market them aggressively, you damn well better market them accurately. Never once did US Attorneys prosecuting the case find an internal Purdue document that said: “We plan to kill tens of thousands of people”; or “isn’t wonderful that we are marketing a highly addictive drug both aggressively and inaccurately?” Instead US Attorney John Brownlee argued that all three of these things were true — and hence, Purdue Pharma was criminally culpable and should be held liable. They did not handle the responsibilities entrusted to them with due diligence, and they were playing with fire.
(Not for nothing: Republicans have devoted a lot of energy to dismantling this understanding of corporate criminality, preferring to set the bar for conviction at uncovering the “We plan to kill tens of thousands of people” memo. This is why I resent the interference from Clinton partisans so much: it is basically setting a similarly impossible standard of evidence for collusion — “We plan to trade the removal of Russian sanctions for Russia’s help in winning the election” — that simultaneously raises the bar of conviction and narrows the grounds of what should be regarded as guilt, and the timeframe of actions that fall under scrutiny. To my mind, an appropriate investigation of Trump and Russia would extend back several years.)
In the analogy drawn, the theory would be: you can be incredibly careless in handling the operations of your campaign, but you can’t then engage in policy discussions with Russians; and if you engage in policy discussions with them, you damn well better not accept help from them at the same time. Like the Purdue Pharma example, the last item obtains its gravity because of the conditions that precede it — not because it swayed an election (it didn’t). Likewise, in this comparison, the “opioids” only really become that potent item for which a higher standard of handling applies when Donald Trump becomes President of the United States. In other words, it is the fact that Trump won, not how he won, that makes Trump’s campaign of criminal interest and subjects him to charges of “high crime.” What was once a latent potential of compromising American interests is now a very real prospect. Hillary Clinton and her tragically bad campaign is, at least in this discussion, almost totally beside the point.
By virtue of his campaign, Donald Trump has demonstrated that he is unfit to carry the powers of the presidency. In the hypothetical case of Trump v. the Intelligence Community, every American should feel party to the intelligence agencies, and egregiously wronged by a campaign so inept and corrupt so as to be subject to both criminal and political investigations.
The Story About the Story
Perhaps more controversial — at least among my friends — is that in this theoretical case that pits Trump against the intelligence community, every American ought to feel party to Trump as well.
Misgivings over the orchestrated campaign of leaks Trump now faces are often expressed as a conspiracy of the “deep state” and couched in terms of bureaucracy. But I think this is poorly specified; nothing about leaks from a generic bureaucracy bothers me. If a staffer from the EPA reveals that Trump’s transition team asked for the names of government officials involved in climate science, for example, then Trump will just have to take his lumps without recourse to ominous rhetoric. Someone decided disclosing this information was in the public interest, and the public will decide if it is, or it is not, based on its understanding of the surrounding context and whatever other information sources can provide.
But intelligence is so different from this more pedestrian kind of leaking that it needs to be regarded as distinct. Access to intelligence is a monopoly and, like other monopolies, it should be regarded as a concentration of power. For obvious reasons, it needs to remain so, but the implicit contract inherent in tolerating this incredible concentration of power is that this universe of information is not then selectively revealed in such a way so as to influence politics. After all, the American people have no ability to judge the surrounding context; we have no recourse to independent sources. It is an unchecked power that, prior to this incredible series of leaks, remained largely unused.
That is clearly not the case anymore. Granted, we live in unusual times, and Trump’s firing of FBI Director Comey precipitated a set of leaks that seem designed to protect the scope and integrity of the FBI’s investigation. Nevertheless, we should judge this torrent of information by a set of standards that so far seem largely absent.
The first: are leakers and the confirmers both anonymous intelligence sources? If so, then this augurs poorly for our democracy; it surrenders our political narrative to unidentified sources who are not even indirectly accountable to us.
The second: does the underlying purpose of this leak justify the risks involved in sharing it? One story that really bothered me in this light was The Washington Post report of a House Republican leadership meeting in June of 2016 during which Congressman McCarthy joked that both Trump and a fellow Republican congressman might be in the paid employ of Russia. If this leak came from a person in attendance, then I’m afraid Speaker Ryan and company will just have to take their licks. It is a generic leak.
But there is reason to think it is not. The story was broken by Adam Entous, the Post’s national security reporter, not their Republicans-in-Congress reporter. In addition, if this leak came directly from a “Never Trump” or otherwise alienated Republican in attendance, there is reason to wonder why it didn’t surface during the campaign, or sometime afterward.
Again it could be this story came directly from someone in attendance, but the signs point to a leak from an investigation, where it had been discovered, stored, and probably filed as innocuous.
Then why share it in a news story? I fear the answer is political. By the end of the day it was published (May 17), Deputy Attorney General Rosenstein abruptly reversed course by appointing a Special Counsel (this was probably done to dispel doubts about his role in Comey’s firing) and, just as abruptly, Speaker Paul Ryan announced his agreement with the decision. Only the week before he spoke out publicly against a Special Counsel.
Mind you, the firing of Comey should have in and of itself prompted Republicans to agree to a Special Counsel. But it did not, and unfortunately for us, democracy leaves ample room for stupidity and dishonor. We cannot restore via selective intelligence leaks what our own voters and democratically elected leaders should be attentive enough to discern on their own. We get the government we deserve, not the one a cabal of anonymous intelligence officials feels we should have. We cannot cheat our way back to fidelity to principles that we have abandoned, by increments and to no small degree, long before the election of Donald Trump.
Two forces endanger a democratic republic; neither one new, but both newly emboldened. One is a political apparatus that has lent itself to profiteering at the expense of the public interest; the other, a “secret government” that operates beyond the purview of democratic accountability. The Trump “story” is the catastrophic culmination of one; and the “story about the story” suggests that we have much to worry about regarding the other.
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Topics Addressed in Dangling Threads:
Why is the White House-sourced reporting from The New York Times so bad? Whatever it the reason, they need to get it together.
Why did the Post reveal the letter at all? So weird.
Rethinking Sally Yates’ final days: getting fired was her best option.
Steele dossier: Stanger than we realize
Why can’t we nail down the date of Kislyak-Kushner-Flynn meeting? I don’t know.
Iran: All arrows point in the direction of demonizing Iran, on the basis of very little.
Did Comey ask for more resources, and, if so, did he need them?
