The FBI document that was supposed to spell out the reasons for opening the sprawling investigation into the 2016 presidential campaign of Donald Trump appeared to be a mere “pro forma exercise” and lacked the substantive elements that such documents are required to have, according to a veteran FBI agent and supervisor.
The document, dated July 31, 2016, was prepared by Peter Strzok, who was the FBI’s counterintelligence section chief at the time. It was published on May 20 by Judicial Watch, a conservative government watchdog, which obtained it through a Freedom of Information lawsuit.
The FBI can open criminal or counterintelligence investigations if it has “articulable factual basis” that a federal crime or a threat to national security may occur. It is a “low” bar, the Justice Department’s inspector general (IG) noted in his Dec. 9, 2019, report on the Russia probe (pdf).
The IG said that the FBI had sufficient predication to open the Russia probe.
Strzok’s opening document, however, fails to properly flush out the concrete points, according to Marc Ruskin, an Epoch Times contributor who spent 27 years with the bureau.
The document is indicative of someone “disregarding the substance of what’s required, but just doing the bare minimum administratively that would be required,” he told The Epoch Times in a phone call.
U.S. Attorney John Durham, who’s heading a criminal investigation into government actions in the Russia probe, issued a rare statement last year voicing disagreement with the IG exactly on the point of predication for the probe.
‘Insufficient and Flimsy’
Strzok stipulated in the document that the investigation pertained to the Foreign Agents Registration Act (FARA) and Russia.
Though fairly complicated, FARA generally requires that anybody under the direction or supervision of a foreign entity and who is doing political work in the United States that principally benefits a foreign government needs to register with the Department of Justice (DOJ).
But Strzok never explained in the document how any of the facts he presented related to the law.
He said that the FBI learned from the Australian government that its then-UK ambassador talked to Trump campaign aide George Papadopoulos, who “suggested” that the campaign received “some kind of suggestion” that Russia could help it by anonymously releasing some information damaging to Trump’s opponent, former Secretary of State Hillary Clinton.
The ambassador was Alexander Downer, who recalled the May 10, 2016, conversation with Papadopoulos in multiple media interviews. He acknowledged the part about “damaging” information, but never mentioned anything about Russia suggesting it would help Trump.
The FBI was at the time looking into a data breach at the Democratic National Committee (DNC), for which the Democrats were then already blaming Russia. Former special counsel Robert Mueller, who took over the Russia investigation in May 2017, indicted in July 2018 a dozen Russians for hacking the DNC and releasing its data, but none of them were charged with a FARA violation.
The DNC files and emails were released through Wikileaks, which technically doesn’t operate in the United States and thus isn’t obligated to file FARA disclosures. But even if the release was to violate FARA, there was no indication that the Trump campaign played a role in it.
Downer didn’t say that Moscow was actually making an offer to the Trump campaign or even expecting a response, much less that the campaign showed any inclination to act as an agent of Russia.
Furthermore, there was no evidence that Papadopoulos was talking about the DNC emails to begin with.
Strzok’s document says that Downer’s information was “related” to the DNC hacking, but it doesn’t say how. According to Downer, Papadopoulos made no mention of hacking, emails, or the DNC.
The day before Downer talked to Papadopoulos, former Judge Andrew Napolitano aired on Fox News an unsubstantiated rumor that the Kremlin possessed emails from Clinton’s controversial private server and was considering releasing them. The FBI probe of Clinton’s server was a prime topic of political gossip in May 2016. For all the bureau knew, Papadopoulos’ supposed “suggestion” was his own speculation on that rumor.
All in all, the FBI only had enough to perhaps collect some more information and then launch a preliminary inquiry, Ruskin said. To justify opening a full investigation, “it seems insufficient and flimsy,” he said.
But Strzok went further.
He wrote that the “investigation is being opened to determine whether individual(s) associated with the Trump campaign are witting of and/or coordinating activities with the Government of Russia.”
This goal doesn’t seem to match with a probe supposedly looking for FARA violations, Ruskin said.
The law doesn’t talk about “coordinating.” A foreign agent needs to act in a “capacity at the order, request, or under the direction or control” of a foreign entity, it says.
Moreover, Strzok worded the goal vaguely (and grammatically incorrect), Ruskin noted.
Indeed, most Americans are “witting of” at least some “activities” of the Russian government.
“You have to articulate what activities,” Ruskin said.
The document was worded to give Strzok “almost a blanket authorization to do whatever he wants,” Ruskin said.
‘Worthy of Further Follow-Up’
Once an investigation had been opened, the bureau not only could deploy informants to spy on the campaign, but also query the National Security Agency’s (NSA) foreign intelligence database, which commonly sweeps up communications of Americans in its collection.
At the time, FBI queries of the database went virtually unchecked. Only in recent years has the Foreign Intelligence Surveillance Court forced the bureau to include an explanation with each query on why it was deemed useful in returning “foreign intelligence information” or “evidence of a crime.”
Adding to the issues, Strzok placed himself as both the one drafting and approving the opening of the probe. While this sometimes happens, Ruskin said, it’s less common. He especially questioned handling this way an investigation of this magnitude, where the campaign of a major party’s nominee was the target. Commonly, multiple people approve an investigation, especially an important one. It’s “worthy of further follow-up” that the FBI didn’t take such a step in this case, Ruskin said.
The point of fulfilling requirements for opening an investigation is “to avoid fishing expeditions” by FBI agents rummaging through people’s lives in search of wrongdoing, he said.
Strzok’s document seemed to Ruskin “an attempt to comply with bureaucratic and legal requirements without actually providing the substance to comply with those requirements,” he said.
Update: The article has been edited for clarity and brevity.
Correction: A previous version of this article incorrectly identified the U.S. attorney who leads an investigation into the Russia probe. The U.S. attorney is John Durham. The Epoch Times regrets the error.