A FARA fight for John Durham

“On July 31, 2016, the FBI opened a Foreign Agents Registration Act (‘FARA’) investigation known as Crossfire Hurricane into whether individual(s) associated with the Donald J. Trump for President Campaign were witting of and/or coordinating activities with the Russian government,” Durham wrote in the introduction section, adding that individual cases against four Trump associates, including Page (who was never charged with wrongdoing), were opened the following month.

By describing the inquiry as a FARA investigation from the start, Andrew Weissmann, who was a top prosecutor for former special counsel Robert Mueller, argued Durham is making a “false” assertion. The Justice Department inspector general, he noted in a thread of tweets Saturday, found the FBI began by opening a counterintelligence investigation.

“IG found the two potential crimes listed in the FBI opening document were: FARA and 18 USC 951 (foreign government agents). IG also found FBI was not required to differentiate criminal vs counterintelligence goals. Why is Durham trying to narrow FBI goals, counterfactually?” Weissmann tweeted.

The Justice Department inspector general, Michael Horowitz, emphasized last year that the Attorney General Guidelines state the FBI is “not required to differently label its activities as criminal investigations, national security investigations, or foreign intelligence collection” but “rather … where an authorized purpose exists, all of the FBI’s legal authorities are available for deployment in all cases to which they apply.”

The electronic communication that officially opened the FBI’s investigation into the Trump campaign, unveiled earlier this year through a Freedom of Information Act lawsuit by conservative watchdog group Judicial Watch, offers some clues about how the bureau described the inquiry at the outset. The document is heavily redacted, but the visible sections note it was “From: Counterintelligence [Redacted]” and its “Case ID#” was “[Redacted] Crossfire Hurricane; Foreign Agents Registration Act — Russia; Sensitive Matter.”

Dated July 31, 2016, the document was authored by then-FBI agent Peter Strzok with the approval of William Priestap, who at the time was assistant director of the FBI’s Counterintelligence Division. The communication said the bureau decided to open its investigation, code-named Crossfire Hurricane, after an Australian diplomat, Alexander Downer, informed the United States that Trump campaign foreign policy adviser George Papadopoulos told him he learned Russia had damaging information on Hillary Clinton, President Trump’s Democratic rival in the 2016 presidential election. Crossfire Hurricane later got wrapped into Mueller’s special counsel investigation, which after roughly two years concluded the Russians interfered in the 2016 presidential election but did not establish any criminal conspiracy between Russia and anyone in Trump’s orbit.

Some journalists, including CBS News senior investigative correspondent Catherine Herridge, seized on Durham’s assertion on Friday that the FBI’s investigation began specifically under FARA, a disclosure statute which historically has been rarely enforced. She pointed to testimony former FBI Director James Comey gave to Congress in March 2017 in which he acknowledged the existence of the investigation.

“FARA is criminal. But when Comey disclosed the probe’s existence in 2017, he emphasized its ‘counter-intelligence’ nature to gather info,” Herridge said. She included a short clip which showed Comey also said, “As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.”

Before he was fired in May 2017, Comey had assured the president that he was not personally under investigation, but recently released documents back up Horowitz’s conclusion that the FBI agent who provided Trump and retired Lt. Gen. Michael Flynn with a counterintelligence briefing in the summer of 2016 used the meeting as a “pretext” to gather investigative information for Crossfire Hurricane.

Asha Rangappa, a former FBI special agent specializing in counterintelligence investigations who is now a CNN analyst, dismissed Herridge’s comparison to Comey’s comments as a “gotcha” attempt.

“FARA violations are worked out of the Counterintelligence Division,” she said in a tweet. “The reason is implied in the title (you are trying to determine if they are ‘foreign agents’)… that requires CI tools. FARA cases often start out as straight-up CI/contact cases.”

Horowitz wrote in his lengthy December report about the Page surveillance warrants that Crossfire Hurricane began as a “counterintelligence” investigation. He also determined that the inquiry was “opened for an authorized investigative purpose and with sufficient factual predication.”

But Durham, along with Attorney General William Barr, disagreed with the assertion that the opening of the investigation was justified.

“Our investigation is not limited to developing information from within component parts of the Justice Department. Our investigation has included developing information from other persons and entities, both in the U.S. and outside of the U.S.,” Durham said in a rare public statement. “Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the inspector general that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.”

Barr agreed, saying Horowitz’s report “makes clear that the FBI launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken.” Barr told the Senate in April 2019 that “spying did occur” against the Trump campaign but “the question is whether it was … adequately predicated.”

One former federal prosecutor said it was “intriguing” for the charge filed by Durham to describe the FBI’s Russia inquiry as potentially having been a criminal investigation from the very beginning.

Andrew McCarthy, a former chief assistant U.S. attorney in New York, wrote in a National Review column that unearthed documents and Horowitz’s reports show that Crossfire Hurricane began as both a criminal and counterintelligence investigation. McCarthy further noted that without the criminal aspect (including the obscure Logan Act in the case of Flynn), the FBI relied on FISA using the premise that Trump campaign associates conspired with Russia, which he called an “outlandish claim” that was “supported by scant evidence and Democratic Party opposition research,” referring to British ex-spy Christopher Steele’s discredited dossier.

With Clinesmith expected to plead guilty, there is already talk about what the 38-year-old possibly cooperating with Durham’s investigation will mean for others under scrutiny by the federal prosecutor.

“Something tells me that Mr. Clinesmith knows where the bodies are buried, and if I were in the FBI working on Crossfire Hurricane, I’d be very worried right now,” Sen. Lindsey Graham said Friday night on Fox News.

Investigative journalist John Solomon of Just the News told Lou Dobbs on Fox Business that Durham is “signaling” in his charging document that there are more criminal prosecutions ahead, alluding to a passage that states information the Crossfire Hurricane team received a memo in August 2016 about Page’s history of cooperating with the CIA was absent from the FBI’s first three FISA warrant applications.

Whether Durham charges anyone else remains to be seen, but Barr said this week that the purpose of the federal prosecutor’s investigation is two-fold.

“One, I have said the American people need to know what actually happened, we need to get through the story of what happened in 2016 and 2017 now out,” Barr said. “The second aspect of this is if people crossed the line, if people involved in that activity violated criminal law, they will be charged.”