Tale of two FBI cases: Clinton got warned, Trump got investigated

A new release of documents by the Senate Judiciary Committee continues to highlight the wide gulf that existed in how the FBI, and then the Mueller Team, worked two significant investigations. 

“Mid-Year Exam” was the codename for the investigation into Secretary of State and presidential candidate Hillary Clinton’s use of a private server; “Crossfire Hurricane,” the codename of the FBI’s look at Russian collusion by four subjects in the 2016 election, which became the Mueller investigation. It is beyond debate that these investigations were handled differently. What has not yet been concluded — and we may see if U.S. Attorney John Durham’s probe into Crossfire Hurricane sheds any new light — is the motive for why this was so.

The FBI is aggressive and tenacious by nature. Leaving no stone unturned in an investigation is a hallmark of FBI work because, more often than not, the bureau has the resources to throw at any investigation it pursues. Mid-Year Exam was referred to the FBI by the intelligence community’s inspector general (IG) because the potential crimes of mishandling classified information and/or espionage fell under the FBI’s mandate. Clinton’s presidential candidacy put the FBI in the untenable position of being afraid that, no matter what it did, it could look political.

The FBI and the Department of Justice (DOJ) engaged in a series of un-FBI-like tactics during the investigation. Among those was granting immunity to six people in a case in which nobody was prosecuted — unheard of in the FBI’s 112-year history. After Congress sent out preservation letters about potential evidence, a computer hard-drive was destroyed by a company hosting Clinton’s servers, without any legal repercussion. Numerous individuals were found to have lied to the FBI during initial interviews but were allowed to clean up their statements months later — very much unlike what happened in Crossfire Hurricane. The chief witness (if not the actual subject) of Mid-Year Exam, Hillary Clinton, was interviewed with a cadre of her attorneys in the room — including her chief of staff, herself a witness if not a potential subject of the investigation. 

By contrast, the FBI and Team Mueller played hardball in Crossfire Hurricane, except when they decided not to seize the Democratic National Committee computer servers alleged to have been hacked by Russian intelligence. Although no collusion was discovered, witnesses were threatened with or prosecuted for process crimes. Volume II of the Mueller Report is a law school case-study on obstruction of justice and the executive branch resulting in no prosecution. 

But perhaps no area highlights the difference in how these two cases were handled than the way the FBI approached the principals when it perceived a counterintelligence threat.

We learned in this week’s Senate document release that, in 2015, the FBI was concerned about campaign contributions from a foreign government to Hillary Clinton’s campaign and the Clinton Foundation. In March 2015, FBI headquarters ordered one of its field offices (likely New York) to defensively brief Mrs. Clinton about this; in October 2015, FBI headquarters also briefed several of Clinton’s attorneys about the threat. This briefing included five “specific examples of issues known to be of importance to the foreign government,” all redacted from the Senate report.

Numerous exchanges between the field office and FBI headquarters were highlighted, concerning the field office’s request to institute a Foreign Intelligence Surveillance Act (FISA) warrant against a target related to the campaign contributions. In April 2015, the head of the field office emailed then-FBI Director James Comey, inquiring about the months of foot-dragging and saying it was critical the FISA be approved before Clinton announced her presidential candidacy. The nature of that target, or whether the FISA request was approved, is not known.

By contrast, the FBI knew of an alleged threat to the Trump campaign by at least July 31, 2016, when Crossfire Hurricane began. The FBI says its team did not learn about the now-discredited Steele dossier until September 2016 even though its author, Christopher Steele, briefed an FBI agent about his concerns on July 5 in London. Then-Deputy Assistant FBI Director Peter Strzok traveled to London at the end of July to interview Alexander Downer, an Australian diplomat whose conversations with Trump campaign staffer George Papadopoulos allegedly predicated Crossfire Hurricane. According to the DOJ’s inspector general, the FBI knew the identity of Steele’s primary — and only — source in October 2016, yet failed to interview him until January 2017, after the election. During this six-month period, nobody from the Trump campaign or transition team was given a defensive briefing specific to Crossfire Hurricane.

When the FBI twice briefed Trump, we now know both were handled as intelligence-gathering operations, not actual briefings. An agent gave Trump a generic briefing about how to protect himself from threats on Aug. 17, 2016 — but wrote it up with his own observations about Trump and his then-national security adviser, Michael Flynn, in a communication to the Crossfire Hurricane file. When Comey briefed Trump on Jan. 6, 2017, it was exclusively on the salacious portions of the Steele dossier, not on any potential threats from the Crossfire Hurricane investigation. Four days later, Buzzfeed published the entire dossier, throwing the Trump transition into a tizzy. 

Days later, the FBI learned Steele’s sub-source information was no more than “bar talk over beers” — and yet, in several subsequent meetings and calls, Comey never told the president anything about Crossfire Hurricane. The obvious conclusion is that, despite zero evidence, the FBI considered Trump a subject of Crossfire Hurricane.

In thousands of pages of testimony, Senate and House reports, multiple IG reports, and the Mueller Report, no proof exists to substantiate that the four subjects of Crossfire Hurricane were counterintelligence threats. And yet, unlike with his opponent, the FBI did not brief Trump, as a candidate or as president, about what it was doing — which was the equivalent of picking sides.

James M. Casey was a police officer and FBI agent for 32 years. He was assigned to the National Security Council in 2004-2005 and was a section chief in the FBI’s Counterintelligence Section for three years. He retired in 2012 as special agent in charge of the FBI’s Jacksonville Division, and is president of FCS Global Advisors, a private investigative and crisis-management firm.