David Warsh: The FBI's 'October surprise' and Trump’s election

SOMEVILLE, Mass.

As a citizen, I feel fairly confident about leaving judgment of Donald Trump’s presidency to American people in the November election.  As a journalist, I’m professionally acutely interested in the ongoing battle over the FBI, because it seems central to American’s faith in in its government institutions.

The story received another jolt last week when Atty. Gen. William Barr said the Justice Department would move to close the government’s case against former National Security Adviser Michael Flynn. Then on May 8, the president expressed dissatisfaction with the conduct of current FBI director, Christopher Wray, in a telephone interview with Fox News, as reported by The Washington Post.

Economic Principals readers have probably read enough about what critics think Attorney General Barr did wrong. If not, here’s a well-informed take is from the well-regarded online Lawfare site.

I wanted to know more about what its critics think the FBI did wrong. So after I read the commentary on the editorial pages of The Wall Street Journal – more on that some other day – I turned to Barr’s interview with CBS correspondent Catherine Herridge, in which I thought that he gave a pretty good, if incomplete, account of his decision.  It was, he said, based on a review of the events of December 2016 and January 2017, undertaken at his request by Jeffrey Jensen, U.S. attorney for eastern Missouri.

Those events, between the election and Trump’s inauguration, transpired long before Barr became attorney general.  Looking back on it, Barr argued that the dominant opinion at the time had been mistaken.  He asserted that, since Flynn was a designated adviser to the president-elect at the time, his call to Russian Ambassador Sergey Kislyak in December 2016 had been “perfectly appropriate and legitimate…. He was saying to the Russians, you know, ‘Don’t escalate.”’

The Obama administration earlier had imposed sanctions in retribution for Russian meddling in the U.S. election. When Russian President Vladimir Putin apparently took Flynn’s advice, the Russia controversy entered a new dimension. The rest of Barr’s reasoning for moving to vacate the charges of lying had to do with the timing of the FBI interviews that produced them.

It took pages of interview transcript to lay out Barr’s reasoning in the intricate matter. Even then, his argument was less than a convincing job. When Herridge pointedly asked, “Did senior FBI officials conspire to  throw out the national security adviser?,” Barr answered, “That’s a question that really has to wait an analysis of all the different episodes that occurred through the summer of 2016 and the first several months of President Trump’s administration.”   Presumably that would be the review that Barr asked John Durham, U.S. attorney for Connecticut, to undertake. Durham’s assignment is understood to include an examination of the circumstances and events that led to the appointment of Special Counsel Robert Mueller.

As previously noted, The Washington Post has reported that a third outside review, by John Huber, U.S. attorney for Utah, this one of the FBI’s investigation of the Clinton Foundation, has been completed, and awaits action by Barr.

One other first-person account by a participant in these events remains to appear, this one by a dispassionate newspaper reporter. Devlin Barrett was working for The Wall Street Journal when he obtained an interview, with assistant FBI Director Andrew McCabe it turned out, in which the existence of the FBI’s investigation of the Clinton Foundation was confirmed for the first time.  McCabe was subsequently fired for having made the disclosure. Barrett moved a few months later to The Washington Post and has remained an energetic contributor to the story ever since.

Barrett’s October Surprise: How the FBI Tried to Save Itself and Crashed an Election. (Public Affairs) is scheduled to appear in October. Its description on Amazon says this:

The 2016 Election, which altered American political history, was not decided by the Russians or in Ukraine or by Steve Bannon. The event that broke Hillary’s blue wall in the Midwest and swung Florida and North Carolina was an October Surprise, and it was wholly a product of the leadership of the FBI. This is the inside story by the reporter closest to its center….

October Surprise is a pulsating narrative of an agency seized with righteous certainty that waded into the most important political moment in the life of the nation, and has no idea how to back out with dignity. So it doggedly stands its ground, compounding its error. In a momentous display of self-preservation, James Comey, Andrew McCabe, and key Justice Department officials decide to protect their own reputations rather than save the democratic process. Once they make that determination, the race is lost for Clinton, who is helpless in front of their accusation even though she has not intended to commit, let alone actually committed, any crime.
A dark true-life thriller with historic consequences set at the most crucial moment in the electoral calendar, October Surprise is a warning, a morality tale and a political and personal tragedy.

Barrett believes, to judge from the flap copy, that the FBI cost Clinton the race. And, as a proximate cause, Comey’s letter notifying Congress that he had briefly reopened the investigation of her email probably did.

EP has argued from the beginning that various field offices of the FBI, as well as headquarters units, were torn, no less than the American electorate, by deep partisan divisions. Outsiders exploited these schisms with varying degrees of success.

Leadership sought to keep lids on warring factions, with profoundly mixed results. The November election will decide possession of the White House for the next four years, but neither Barr nor Durham nor Barrett will settle the battle over the FBI. Much remains to be learned.

David Warsh, an economic historian and veteran columnist, is proprietor of Somerville-based economicprincipals.com, where this column first ran.

David Warsh: Trump's war on FBI might gradually become the dominating story of his regime

SOMERVILLE, Mass.

What’s going to turn out to be the ultimate story of the Trump presidency? The respective philosophic stances of the four most important English-language dailies could be glimpsed on  March 24’s front pages:

· The New York Times: “Trump Seethes, But Signs Bipartisan Spending Pact”; “President Unbound, Aides Bewildered, Capital Reeling”; “A 1.3 Trillion Deal Flies in the Face of His Agenda”; “Icy Maneuvering by U.S. and China in Tech Cold War”

· The Wall Street Journal: “Trump Relishes Off-Script Approach”; “Stocks Sink to the Worst Week in Years”

· Financial Times: “Bolton’s rise signals eclipse of moderates under Trump”; “China ready to hit back with tariffs”

· The Washington Post: “Budget is signed, with a dose of drama”; “Trump aide [George Papadopoulos] got campaign guidance on foreign efforts”; “In Bolton, President gains an old hand at bureaucracy game”

There was nothing that day about the porn star or the Playboy model. But a couple of days earlier, The Post had tucked inside its front section a story about the FBI. “McCabe was asked about media contacts on the day [FBI Director James] Comey was fired” shone a narrow beam of bright light on a dark corner of what I believe will in the end become the dominating story of Trump’s time as president.

Deputy director Andrew McCabe was fired earlier this month by Atty. Gen. Jeff Session, on the advice of the FBI’s Office of Professional Responsibility, which relied on information developed by FBI Inspector General Michael Horowitz. Cited was a “lack of candor” in various interviews with FBI investigators working for Horowitz – a cardinal sin among FBI agents. 

The Post article, written by Matt Zapatosky and Karoun Demirjian, presented several new facts. The IG’s team questioned McCabe that day President Trump fired Director Comey. They asked him about the role he played in sourcing of a story that appeared the autumn before in the WSJ, 10 days before the election. His alleged lack of candor that day, May 9, may have been the first of several examples ultimately cited in his firing, a day before he was slated to retire with fully vested pension benefits.    

That WSJ article, “FBI in Internal Feud over Hillary Clinton Probe,” by Devlin Barrett, revealed a series of disputes, both between Justice Department prosecutors and the FBI, and among factions within the bureau itself, about whether and how to pursue investigations of the Clinton Foundation. Reporter Barrett disclosed that, according to “people familiar with the matter,... Early this year, four FBI field offices – New York, Los Angeles, Washington, and Little Rock, Ark. – were collecting information about the Clinton Foundation “to see if there was evidence of financial crimes or influence peddling.”

The previously unreported investigation had been a matter of internal debate within both agencies throughout the campaign year, Barrett wrote, before describing the sequence of arguments in unusual detail. The Post hired Barrett away from the Journal in February last year.

Where did Barrett get his information? One vector became clear last week. Zapatosky and Demirjian, similarly citing “people familiar with the matter,” wrote that McCabe, acting in his capacity as deputy director, had

"authorized two FBI officials, the FBI’s top spokesman and FBI lawyer Lisa Page, to talk to a Wall Street Journal reporter [Barrett[ in October 2016, for a story the reporter was preparing on the Clinton email case and a separate investigation of the Clinton Foundation….. McCabe has said publicly that he felt he was “being accused of closing down investigations under political pressure,” and he wanted to push back."

Similar pressures may have led Director Comey to notify Congressional leaders on October 28 of the existence of a small trove of previously unexamined emails from Hillary Clinton’s private email server – a headline-provoking move that may have influenced the election results more powerfully than Russian interference.

The Inspector General’s report has not yet been released. Horowitz, a political appointee in the Bush and Obama administrations, has as good a reputation for integrity and independence as does Comey, but the concerns of the two men are not identical. (Trump and his supporters, and some others, routinely disparage Comey’s reputation.)

Conspicuous in the announcement of the scope of the IG’s review were “allegations that Department and FBI employees improperly disclosed non-public information.” How even-hand and thorough Horowitz’s investigation has been of leaks during the campaign year is, for now, anybody’s guess. Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) has promised hearings once the report becomes public.  

The story of a presidency inevitably settles on a narrative. The Watergate inquiries that ended Richard Nixon’s presidency were furthered by a little-noticed battle over who would replace long-time director J. Edgar Hoover after is untimely death. The public understanding of what had happened was greatly shaped by the legend of “Deep Throat.” Internecine strife of a different sort seems likely to ultimately determine the way the Trump administration is remembered.

A daring mutiny by disgruntled FBI agents as the election neared? Political favoritism by those serving in the Obama administration? As with the Watergate proceedings, the questions go to the heart of what it means to serve with honor and to tell the truth. All they lack so far is a relatively dispassionate public forum in which to be examined. My guess is that they’ll find one next year. In that case, unless military conflagration supersedes it, Trump’s war on the FBI will gradually become the dominating story of his administration.

David Warsh, a veteran commentator on financial, political and media matters, is proprietor of economicprincipals.com, where this column first ran.

David Warsh: Clarifying the story about Podesta and the DNC server

BOSTON

An interesting experiment, conducted last week in Washington, may signal the end of one dispensation and the beginning of another.  On July 5, reporter Dan Boylan had  brief item in The Washington Times, a Republican newspaper, under the headline, “Hacked computer server that handled DNC emails remains out of reach of Russia investigators.”

Two days later, President Trump tweeted from the Group of 20 summit meeting in Hamburg that “Everyone here is talking about why John Podesta refused to give the DNC server to the FBI and CIA. Disgraceful!”

Never mind that Podesta, Hillary Clinton’s campaign chairman, had no direct connection with the Democratic National Committee, and little or nothing to do with its decision. The DNC turned over its server instead to a trio of private security firms led by CrowdStrike, of Irvine, Calif., its consultant throughout the campaign.  Shawn Henry, a former FBI executive who formerly led both the FBI’s criminal and cyber divisions, oversaw the investigation as head of CrowdStrike’s prevention and incident response services.

The one-two punch was a transparent attempt to reopen the antagonisms of the 2016 presidential campaign. Custody of the server hadn’t been a big item to this point, Boylan noted, “But behind the scenes, discussions are growing louder, Congressional sources say.” Lindsey Graham, (R-S.C.), who is heading the Senate Judiciary Committee’s investigation, said “I want to find out from the company [that] did the forensics what their full findings were.”

Why might the DNC be reluctant to turn over its server to the FBI?  We’re back to the high degree of polarization that existed in the nation’s leading law-enforcement agency in 2016.  Economic Principals has written about this tension before, speculating that incipient mutiny within several FBI field offices may have led Director James Comey to announce, shortly before the November election, that he was reopening the investigation of Hillary Clinton’s emails.

Vetting the previously unexamined exchanges found on former Congressman Anthony Weiner’s computer took only days and turned up nothing new. But the reminder of the long-running controversy was widely considered to have influenced the election – almost certainly more than any action ascribed to Russian hackers. The question of insubordination amid the internal feud,  well-documented by The Wall Street Journal (subscription required), didn’t come up in Comey’s Senate testimony, and has received little attention from the mainstream press, and for good reason.

The FBI is proud of its tradition of independence and discipline.  Not since the Watergate affair have differences of opinion within the Bureau spilled into the press in the form of leaks that turned out to have momentous consequences.  In in 1972 and 1973, Deputy Director Mark Felt’s ambition to displace L. Patrick Gray played a major, if inadvertent role, in precipitating the eventual resignation of President Richard Nixon.

In 2016, Comey headed off a threatened rebellion by agents pursuing a criminal investigation of the Clinton Foundation. No doubt he intended to deal afterwards with those who threatened to go to the press. Such internal matters are very difficult to uncover, at least in the absence of continuing turmoil. That “the vast majority of the FBI community had great trust in your leadership and, obviously, trust in your integrity” was confidently asserted in the Senate hearing, by Sen. Richard Burr (R-N.C.), and never mind the views of the dissenting minority.

Former Assistant Atty. Gen. Christopher Wray, nominated by President Trump to succeed Comey as director, is widely expected to seek to maintain the Bureau’s fall-on-your-sword traditions. Hence the good leaving-alone the affair has received from the mainstream press – that, and a dominating preoccupation with those audacious Russians.

Now the point. The DNC’s reluctance to share its server probably stems from an awareness of lingering antagonisms within the FBI – the natural inference is that there’s presumably something on it that they don’t trust some FBI agents to keep to themselves once seen.  Still, the failure to turn over the evidence is just the sort of lever on public opinion the Congressional Republicans have used before with great success, notably with respect to Hillary Clinton’s decision to use a private email server while Secretary of State. I don’t expect Congressman Trey Gowdy (R.-S.C.) to gain much purchase with this one, despite his ascension to the House Oversight and Government Reform Committee.

What might have changed?  The appointment of former FBI Director Robert Mueller as special counsel to lead a broad Russia probe, for one thing.  The prospect of next year’s mid-term Congressional elections, for another.

Mueller has established a cone of waiting. His inquiry far outranks in probity whatever the hearing the Senate might conduct. If he subpoenas the hacked server, he’ll get it.  As Politico’s Jack Shafer wrote last week:

"With Mueller on the case, leaks to the press make less sense than scheduling an appointment with one of the special prosecutor’s tough guys. Mueller has placed a lockdown on his team, so don’t expect leaks from him. It’s gonna be a long, hot, dry summer unless the targets of the investigation start gushing to the press on the direction of their attorneys.''

The midterm elections pose a significant threat to Republican Party ambitions.  It’s too soon to assess the possibilities.  But leaving aside grandiose hopes, such as reclaiming former Congressman Tom Price’s House seat in Georgia, the Democratic Party is in position to make substantial gains next year, if it can identify suitable candidates

It’s hard to judge these things from Boston (though it may be easier than in Washington). My hunch is that the valence on Capitol Hill has changed. The familiar kamikaze tactics of the last 25 years may be coming to an end. That is why the DNC server experiment bears watching.

David Warsh, a veteran business and political columnist and an economic historian, is proprietor of economicprincipals.com, where this piece first ran.

Robert Whitcomb: FBI right about terrorist's iPhone

The U.S. government has the stronger argument in its battle with Apple over obtaining access to possible information about terrorism in the iPhone of Syed Rozwab Farook. That Islamic fanatic and his wife, Tashfeen Malik, murdered 14 people in San Bernardino, Calif., last Dec. 2 before police killed them.

The fact is, as Microsoft founder Bill Gates told the Financial Times, “This is a specific (emphasis is mine} case where the government is asking for access to information.’’

 “They are not asking for some general thing; they are asking for a particular case.”

“It is no different than [the question of] should anybody ever have been able to tell the phone company to get information, should anybody be able to get at bank records” to investigate a crime, Mr. Gates added. 

The government's case, backed by a federal judge, rests on  long-established law holding that "no item -- not a home, not a file cabinet and not a smartphone -- lies beyond the reach of a judicial search warrant"  in investigating crimes, Manhattan District Atty. Cyrus Vance has noted.

There exists no "right of privacy" to withhold evidence of a crime. The idea that the cellphone is a privileged device off-limits to law enforcement is absurd.

U.S. Magistrate Judge Sheri Pym is not telling Apple to create a “backdoor’’ that puts all users in new danger of being electronically violated. She has told Apple to help the FBI get into a single iPhone to obtain information that might save people from being murdered by ISIS-related terrorists.

We don’t want to break anyone’s encryption or set a master key loose on the land,” FBI Director James Comey has said.

Judge Pym has ordered Apple to create temporary software to let the FBI try many passwords on the phone without its data disappearing, which it normally would after 10 tries because of the company’s security walls.

Apple chief executive Tim Cook complains that such a “backdoor” could be used on other phones. But it stands to reason that Apple could control its software to unlock specific  devices, after the government obtained warrants detailing compelling circumstances.

Apple’s hypocrisy in this is impressive.

Consider its close cooperation with China, a police state. There, Apple has moved its local user data onto servers run by state-owned China Telecom, which mines such information with abandon. And Apple submits to security audits by Chinese officials. But then, Apple hopes to continue enjoying 40 percent profit margins by expanding further in China -- the company’s second-largest market.

Apple – at least for public consumption -- worries that if the U.S. government forces it to let authorities into Farook’s phone that China will demand the same right, which might scare away some potential iPhone buyers there. But there’s little indication that Apple will not continue giving the dictatorship whatever it wants.

James Lewis, a senior fellow at the Center for Strategic and International Studies, noted in the Los Angeles Times:

"What's driving this is Apple's desire to persuade the global market, and particularly the China market, that the FBI can't just stroll in and ask for data.  {But} I can't imagine the Chinese would tolerate end-to-end encryption or a refusal to cooperate with their police, particularly in a terrorism case."

Law enforcement must have the tools to keep up with criminals, who increasingly use such tools as encryption, Bitcoin currency and disappearing messages. In this case, Apple, rather than worrying that the publicity connected with letting the U.S. government get into a criminal’s cellphone might hurt profits, should focus on saving lives. (Do tech execs, shielded by wealth and gated communities, not feelquite as threatened by terrorists as the poorer people (e.g., in San Bernardino) who are usually the victims?)

Meanwhile, let’s worry more about how private-sector organizations such as Apple, Microsoft,  Google and Yahoo, invade our privacy and follow us wherever we go. As Fortune magazine columnist Stanley Bing wrote: “It's just the beginning, guys. Every breath you take. Every move you make. Every bond you break, every step you take, Apple will be watching you.’’

Robert Whitcomb, a fellow of the Pell Center for International Relations and Public Policy, in Newport, R.I., is overseer of New England Diary and a former editor at the International Herald Tribune and The Wall Street Journal.