Crossfire Hurricane: The Theory Of The Case

For those of us who try to follow developments in the Russia Hoax, it's easy to get bogged down in the details and lose sight of the big picture: what I call the "theory of the case." Every investigation needs a guiding theory, even a hoax investigation, and a solid grasp of that overall case theory is a big help in coming to grips with the big picture.

It’s useful to look at two aspects together: first, the Carter Page FISA, and second, Rod Rosenstein's memo authorizing the Special Counsel.

We've all heard the criticism of Rosenstein's authorization memo: it fails to cite a criminal violation, and so the appointment of Mueller as Special Counsel is illegitimate because the regulations governing the appointment of a Special Counsel require that a criminal violation be stated. But like so many things we think we know, this turns out not to be true at all.

For starters, the regulations only state that the Attorney General (or, in our case, the Acting AG) has to "determine…that criminal investigation of a person or matter is warranted."  It doesn't state that the actual criminal violation has to be named in the memo. Naturally, the subject of an investigation would like to know what he's being investigated for, and just as naturally the investigator would like to keep the subject in the dark about as much as possible. What would be a reasonable sounding explanation for refusing to cite a criminal statute? It's right there in Rosenstein's memo

The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017 .... [emphasis added]

And if we check out Comey's testimony, we discover that the investigation that he confirmed, what we know as Crossfire Hurricane, was a counterintelligence (CI) investigation. That means it's all classified, so nothing can be revealed publicly.

But wait, you say, a CI investigation isn't a criminal investigation, so where's the criminal violation, even if it's not named? This, it turns out, is another one of those things everyone thinks they know.

The classic CI type of investigation is espionage.  Is espionage a criminal violation? You betcha. Therefore a CI investigation can simultaneously be a criminal investigation. It doesn't have to be, but it can be. All that's required, really, is a nexus with an intelligence service of a hostile foreign power. Russia, for example.

Well then, do we have any reason to believe that this particular CI investigation also involves a criminal violation.   --  a reason, that is, beyond the inherent unlikelihood that Rod Rosenstein would edge out onto a legal limb and then carefully cut it off behind himself by failing to follow the regulatory requirements?

In fact we do have a reason, a good reason. The very existence of the Carter Page FISA is a warning siren that tells us that there is a criminal violation being alleged. We know this because the section of the FISA law that deals with obtaining FISA coverage on a US Person states that the FBI must provide probable cause to the FISA court (FISC) that the US Person

...knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States. [emphasis added]

That's it. There are some possible refinements, but this characterization suffices for our purposes.

The FBI, acting in connection with a Full Investigation, Crossfire Hurricane, obtained a FISA warrant against a US Person. Based on the clear statutory language, whatever the US Person was up to allegedly must have involved: 1) clandestine intelligence activities and 2) possible violations of one or more criminal statutes.

But, you ask, what possible evidence did the FBI have that Carter Page was engaging in "clandestine intelligence activity," much less in violation of some criminal statute? After all, wasn't he an FBI asset in New York working against the Russians?

According to the FBI, Page -- acting as Paul Manafort's intermediary -- flew to Moscow in July, 2016, and conducted secret meetings with movers and shakers in Russia, people like Igor Sechin, known to be well connected to Putin. We already knew that the Trump campaign had agreed to lift sanctions on Russia in exchange for Russia's release of DNC emails through Wikileaks -- a clear quid pro quo! And now it turns out that Page has flown to Moscow to discuss further sanctions concessions in return for "bi-lateral energy cooperation." It was all part of a "well developed conspiracy of cooperation" between Trump and the Russian leadership. That's some kind of clandestine activity!

And how do we know all this? I'm glad you asked. We know this through the good offices of one Christopher Steele, "formerly" of Britain's MI6, who consulted his sources and wrote it all up in report form so that it could later be conveniently compiled into a "dossier". But isn't all this unverified -- isn't that what Comey, Director of the FBI, told the House? Under oath?  Well, what's a joke among friends, right? And, anyway, how were the FISC judges to know any better?

The point is, if we accept this narrative, then not only is Trump complicit in the clandestine intelligence activity of his agents, but there's a clear violation of a criminal statute: bribery. I'm not going to hold myself out as an expert on public corruption laws, but let's just take as one possible example 18 US Code 201 - Bribery of public officials and witnesses, 201(b)(2). There we read:

(b) Whoever—
...
(2) being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:
(A) being influenced in the performance of any official act;
(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; [emphasis added]

It sure looks like the Trump team was conspiring to violate the Bribery law once they were elected. True, they weren't yet public officials, but that's just all the more reason to keep renewing the FISA every three months.

How's that for a theory of the case? Of course, as George Smiley would say, "it's just a theory," but it certainly seems to explain a lot. And there's more.

I've always maintained that the famous Trump Tower meeting on June 9, 2016, was an early attempt to ensnare the Trump campaign in a quid pro quo deal with Russians in which the Russians would supposedly provide "dirt" in exchange for sanction relief -- i.e., a clear exchange of a thing "of value" for action on official policy. Recall, this meeting took place before Carter Page's ill-timed trip to Moscow. It involved the Russian lawyer Natasha Veselnitskaya (who was allowed into the US only on the direct intervention, ultimately, of AG Loretta Lynch) and top Trump aides Jared Kushner, Don Jr., and Paul Manafort. Manafort was supposed to be directing the outreach to the Russian leadership. Veselnitskaya had claimed she could provide "dirt" on Hillary, but then inexplicably -- or maybe not -- began yammering about something called the Magnitsky Act.

Well, it so happens that the Magnitsky Act is actually all about sanctions on Russia. My take is that she was hoping to elicit some inquiry from the Trump aides that would show their willingness to discuss a quid pro quo -- bribery, a criminal violation. This would allow for a Full Investigation of the Trump campaign and even of Trump personally. Fortunately for Trump, Don Jr. cut the whole thing short.

End of story? Actually, no. One thing we keep hearing about with regard to people who are interrogated by Team Mueller is that they are repeatedly asked whether Trump himself knew about the meeting with Veselnitskaya. Did he know, do they think he knew. There are two ways to use this, neither of which add up to a criminal violation but either of which, if included in Mueller's final report (if it ever gets written) could cause serious damage to the Trump presidency.

The first would be that, if Trump can be claimed to have known about the meeting, then the Steele dossier narrative about Carter Page suddenly looks like a mission to sound out the Russians on what Veselnitskaya was talking about -- sanctions, and is there a deal we, the Trump team, could make on that?

The second, leaving Page and the dossier out of it, would be if Mueller can get someone, anyone, (say, Manafort in solitary) to say they even think that Trump was told about the meeting. In combination with Trump's earlier public outright denial (as opposed to the lawyerly written response "to the best of my recollection"), that assertion would be used to create the impression that Trump denied it because of guilty knowledge. That term would mean that he denied it because he really did seriously consider the bribery scheme, even though he may have rejected it. Of course that's why he can't just simply say, Yeah, Don Jr. told me, but so what? He'd soon find out so what, because toying with a bribery scheme is a lot different than toying with a Moscow real estate deal.

And so that brings us to the whole declassification controversy. Like everyone else, I want full declassification sooner rather than later. On the other hand, as Mark Penn has so trenchantly argued, Mueller's strategy seems to be to play this out in the court of public opinion. Viewed from that standpoint, I'd say that Trump deserves the best possible defense -- including in the court of public opinion. Therefore, I'm willing to trust his judgment on the proper timing for declassification, knowing that it's his life on the line and knowing that this could well be the key to an effective counter to the planned smear.

It's all just a theory.

Mark Wauck blogs on religion, philosophy, and FISA at meaning in history. In his earlier life he spent over two decades in the world of counterintelligence.

For those of us who try to follow developments in the Russia Hoax, it's easy to get bogged down in the details and lose sight of the big picture: what I call the "theory of the case." Every investigation needs a guiding theory, even a hoax investigation, and a solid grasp of that overall case theory is a big help in coming to grips with the big picture.

It’s useful to look at two aspects together: first, the Carter Page FISA, and second, Rod Rosenstein's memo authorizing the Special Counsel.

We've all heard the criticism of Rosenstein's authorization memo: it fails to cite a criminal violation, and so the appointment of Mueller as Special Counsel is illegitimate because the regulations governing the appointment of a Special Counsel require that a criminal violation be stated. But like so many things we think we know, this turns out not to be true at all.

For starters, the regulations only state that the Attorney General (or, in our case, the Acting AG) has to "determine…that criminal investigation of a person or matter is warranted."  It doesn't state that the actual criminal violation has to be named in the memo. Naturally, the subject of an investigation would like to know what he's being investigated for, and just as naturally the investigator would like to keep the subject in the dark about as much as possible. What would be a reasonable sounding explanation for refusing to cite a criminal statute? It's right there in Rosenstein's memo

The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017 .... [emphasis added]

And if we check out Comey's testimony, we discover that the investigation that he confirmed, what we know as Crossfire Hurricane, was a counterintelligence (CI) investigation. That means it's all classified, so nothing can be revealed publicly.

But wait, you say, a CI investigation isn't a criminal investigation, so where's the criminal violation, even if it's not named? This, it turns out, is another one of those things everyone thinks they know.

The classic CI type of investigation is espionage.  Is espionage a criminal violation? You betcha. Therefore a CI investigation can simultaneously be a criminal investigation. It doesn't have to be, but it can be. All that's required, really, is a nexus with an intelligence service of a hostile foreign power. Russia, for example.

Well then, do we have any reason to believe that this particular CI investigation also involves a criminal violation.   --  a reason, that is, beyond the inherent unlikelihood that Rod Rosenstein would edge out onto a legal limb and then carefully cut it off behind himself by failing to follow the regulatory requirements?

In fact we do have a reason, a good reason. The very existence of the Carter Page FISA is a warning siren that tells us that there is a criminal violation being alleged. We know this because the section of the FISA law that deals with obtaining FISA coverage on a US Person states that the FBI must provide probable cause to the FISA court (FISC) that the US Person

...knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States. [emphasis added]

That's it. There are some possible refinements, but this characterization suffices for our purposes.

The FBI, acting in connection with a Full Investigation, Crossfire Hurricane, obtained a FISA warrant against a US Person. Based on the clear statutory language, whatever the US Person was up to allegedly must have involved: 1) clandestine intelligence activities and 2) possible violations of one or more criminal statutes.

But, you ask, what possible evidence did the FBI have that Carter Page was engaging in "clandestine intelligence activity," much less in violation of some criminal statute? After all, wasn't he an FBI asset in New York working against the Russians?

According to the FBI, Page -- acting as Paul Manafort's intermediary -- flew to Moscow in July, 2016, and conducted secret meetings with movers and shakers in Russia, people like Igor Sechin, known to be well connected to Putin. We already knew that the Trump campaign had agreed to lift sanctions on Russia in exchange for Russia's release of DNC emails through Wikileaks -- a clear quid pro quo! And now it turns out that Page has flown to Moscow to discuss further sanctions concessions in return for "bi-lateral energy cooperation." It was all part of a "well developed conspiracy of cooperation" between Trump and the Russian leadership. That's some kind of clandestine activity!

And how do we know all this? I'm glad you asked. We know this through the good offices of one Christopher Steele, "formerly" of Britain's MI6, who consulted his sources and wrote it all up in report form so that it could later be conveniently compiled into a "dossier". But isn't all this unverified -- isn't that what Comey, Director of the FBI, told the House? Under oath?  Well, what's a joke among friends, right? And, anyway, how were the FISC judges to know any better?

The point is, if we accept this narrative, then not only is Trump complicit in the clandestine intelligence activity of his agents, but there's a clear violation of a criminal statute: bribery. I'm not going to hold myself out as an expert on public corruption laws, but let's just take as one possible example 18 US Code 201 - Bribery of public officials and witnesses, 201(b)(2). There we read:

(b) Whoever—
...
(2) being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:
(A) being influenced in the performance of any official act;
(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; [emphasis added]

It sure looks like the Trump team was conspiring to violate the Bribery law once they were elected. True, they weren't yet public officials, but that's just all the more reason to keep renewing the FISA every three months.

How's that for a theory of the case? Of course, as George Smiley would say, "it's just a theory," but it certainly seems to explain a lot. And there's more.

I've always maintained that the famous Trump Tower meeting on June 9, 2016, was an early attempt to ensnare the Trump campaign in a quid pro quo deal with Russians in which the Russians would supposedly provide "dirt" in exchange for sanction relief -- i.e., a clear exchange of a thing "of value" for action on official policy. Recall, this meeting took place before Carter Page's ill-timed trip to Moscow. It involved the Russian lawyer Natasha Veselnitskaya (who was allowed into the US only on the direct intervention, ultimately, of AG Loretta Lynch) and top Trump aides Jared Kushner, Don Jr., and Paul Manafort. Manafort was supposed to be directing the outreach to the Russian leadership. Veselnitskaya had claimed she could provide "dirt" on Hillary, but then inexplicably -- or maybe not -- began yammering about something called the Magnitsky Act.

Well, it so happens that the Magnitsky Act is actually all about sanctions on Russia. My take is that she was hoping to elicit some inquiry from the Trump aides that would show their willingness to discuss a quid pro quo -- bribery, a criminal violation. This would allow for a Full Investigation of the Trump campaign and even of Trump personally. Fortunately for Trump, Don Jr. cut the whole thing short.

End of story? Actually, no. One thing we keep hearing about with regard to people who are interrogated by Team Mueller is that they are repeatedly asked whether Trump himself knew about the meeting with Veselnitskaya. Did he know, do they think he knew. There are two ways to use this, neither of which add up to a criminal violation but either of which, if included in Mueller's final report (if it ever gets written) could cause serious damage to the Trump presidency.

The first would be that, if Trump can be claimed to have known about the meeting, then the Steele dossier narrative about Carter Page suddenly looks like a mission to sound out the Russians on what Veselnitskaya was talking about -- sanctions, and is there a deal we, the Trump team, could make on that?

The second, leaving Page and the dossier out of it, would be if Mueller can get someone, anyone, (say, Manafort in solitary) to say they even think that Trump was told about the meeting. In combination with Trump's earlier public outright denial (as opposed to the lawyerly written response "to the best of my recollection"), that assertion would be used to create the impression that Trump denied it because of guilty knowledge. That term would mean that he denied it because he really did seriously consider the bribery scheme, even though he may have rejected it. Of course that's why he can't just simply say, Yeah, Don Jr. told me, but so what? He'd soon find out so what, because toying with a bribery scheme is a lot different than toying with a Moscow real estate deal.

And so that brings us to the whole declassification controversy. Like everyone else, I want full declassification sooner rather than later. On the other hand, as Mark Penn has so trenchantly argued, Mueller's strategy seems to be to play this out in the court of public opinion. Viewed from that standpoint, I'd say that Trump deserves the best possible defense -- including in the court of public opinion. Therefore, I'm willing to trust his judgment on the proper timing for declassification, knowing that it's his life on the line and knowing that this could well be the key to an effective counter to the planned smear.

It's all just a theory.

Mark Wauck blogs on religion, philosophy, and FISA at meaning in history. In his earlier life he spent over two decades in the world of counterintelligence.