Biden reacts to Trump’s claim he declassified docs
President Joe Biden responds to Donald Trump’s taking of top secret documents to his Florida Mar-a-Lago estate and appears to mock the former president’s assertion that he declassified the documents seized by the FBI earlier this month. (Aug. 26)
After the Justice Department released a singularly rare photo showcasing folders labeled “top secret” and “secret” on the floor at Donald Trump’s Mar-a-Lago estate, the media and the public zoomed in on what it could all mean.
The former president has said he had a standing order to “automatically declassify” all documents he took home and made it core to his defense, accusing the government of overreach after the FBI searched his Florida home.
But whether or not Trump’s claim is true – and whether or not the documents are classified or even declassified – for his legal defense right now, it may not matter, experts told USA TODAY.
That’s because the federal laws used to justify the Aug. 8 search do not require the documents to be classified for a crime to be committed. In fact, the provisions of federal law contained in the Espionage Act, obstruction, and the mishandling of government records and reports mentioned in the search affidavit don’t even include the words “classified” or “confidential.” The first two carry the heftiest penalties of fines and up to 10 and 20 years in prison, respectively.
In approving the search warrant, a federal magistrate agreed that there was probable cause FBI agents would uncover evidence that these three provisions of federal law were violated.
Trump’s legal team on Monday reiterated the broad argument that Trump had the power to declassify information in a filing opposing the Justice Department’s effort to keep documents labeled as “classified” from being handed over to a special master, or neutral third party, for review.
“The president enjoys absolute authority under the executive order to declassify any information,” the filing states. And, it added, there’s no legitimate claim that it requires approval of “bureaucratic components of the executive branch.”
Today’s modern classification system was created years after the 1917 Espionage Act, said Jim Trainor, a former FBI counterintelligence agent who served as assistant director for the cyber division.
That’s why the section cited by the DOJ refers to “national defense” materials, he added.
“The Espionage Act doesn’t define what national defense information is,” a recent Congressional Research Service report noted, adding that courts all the way upto the Supreme Court have laid out some general principles: that such information typically relates to the military and naval establishments and national preparedness; that the information must be closely held; and that disclosure must be potentially damaging to the nation.
“My sense is they (the DOJ) didn’t want to go down this rabbit hole as to whether the documents are classified or not,” Trainor said.
Still, that doesn’t mean the Justice Department can’t later decide to seek an indictment based on other statutes, Trainor said.
Trump’s own former Attorney General Bill Barr said that broadly proclaiming all documents removed to the White House residence declassified by default without telling anyone would be highly “reckless” given that American agents, their families and the nation’s hard-won foreign assets could be exposed.
‘Immediate and serious harms’
In a court filing last week, the DOJ noted that providing seized classified records to a special master could cause “the most immediate and serious harms to the government and the public.” The DOJ said it had identified “a discrete set of just over 100 documents,” or more than 700 pages, that it called classified records belonging to the government and part of an ongoing criminal investigation.
FBI agents also removed from Trump’s office and storage room more than 11,000 government documents and photos without any classification markings mixed in with some of the nation’s most highly-guarded secrets, according to court filings.
The Office of the Director of National Intelligence is conducting its own review of the national security risk of possible unauthorized disclosure of these classified records and any harm that may have occurred, according to DOJ court filings.
A grand jury subpoena on May 11 also laid groundwork for the Mar-a-Lago search in August. The subpoena, received by Trump attorney Evan Corcoran, essentially put Trump on notice that there was an official government request for national defense materials, said Jamil Jaffer, who worked at White House counsel’s office under President George W. Bush and helped send highly classified documents to the National Archives and Records Administration as part of the administration’s transition.
Because, the DOJ affidavit noted, the Espionage Act provision includes the “unauthorized possession” of information relating to the national defense that’s “willfully” kept from a U.S. government representative entitled to receive it, the Justice Department can now argue Trump indeed “willfully” kept those materials, especially after his attorney signed a sworn certification saying Trump had not retained materials the government requested, Jaffer said.
Trump and his attorneys have argued that the seized materials are all governed by the Presidential Records Act, allowing the president discretion to categorize his records as presidential or personal – with limited judicial oversight on the issue.
“At best, the government might ultimately be able to establish certain Presidential records should be returned to NARA (the National Archives and Records Administration),” the Sept. 12 filing states. “What is clear regarding all of the seized materials is that they belong with either President Trump … or with NARA, but not with the Department of Justice.”
The second statute in the affidavit refers to trying to impact or obstruct government workings, including, in this case, the Archives, Jaffer added.
Trump’s attorneys did not provide a comment.
But it remains unclear if the DOJ would prosecute Trump.
That’s because the DOJ might simply take the view that getting the documents secured is enough, said Jaffer, who also worked on these issues at the DOJ’s National Security Division.
National security experts say the DOJ is in a tough spot not only because of the political timing and optics, but also because such a move may send the wrong message to other intelligence workers – both those who understand they would face prosecution without hesitation in a similar circumstance, as well as future presidents and senior officials who may be emboldened to do as they want with state secrets.
Trump is also not any government employee, but a former commander-in-chief who had the power to issue executive orders and declassify materials. Jaffer noted that plenty of senior government officials, including the president himself, have made classified information public as an attempt to better inform the public about national security issues; they are not prosecuted, even when it is done in an informal manner.
And when Trump tweeted a sensitive picture of the aftermath of an accident at an Iranian space facility, he also wasn’t prosecuted, nor was there any public suggestion from the DOJ that he ought to be.
The DOJ may decide that no further threat to national security is enough, taking a page from former special counsel Bob Mueller’s investigation into Russian election interference, Jaffer said. That would leave the information in the hands of the American people, again, to decide for themselves.
Meanwhile, a second federal investigation is looking into the January 6 attack on the Capitol and broader efforts to overturn the 2020 election, an issue that obviously could implicate the man who spent most of the 2020 lame-duck period trying to erase his loss to President Joe Biden.
Then there are twoseparate New York investigations into the Trump Organization and Trump’s web of surrounding businesses, which are investigating allegations that Trump misrepresented his companies’ finances in order to obtain bank loans or to reduce taxes.
New York Attorney General Letitia James’s investigation into these allegations is primarily civil (as in, non-criminal), but a parallel investigation by Manhattan District Attorney Alvin Bragg already led to two indictments — both the Trump Organization and its CFO Allen Weisselberg were indicted in July 2021.
Weisselberg pleaded guilty to more than a dozen different counts this month. He also agreed to testify against the Trump Organization — but not against Trump himself — if called to do so. Nevertheless, Bragg is reluctant to indict Trump, according to an interview last month with former Manhattan prosecutor Mark Pomerantz.
Trump’s staff did not respond to an inquiry seeking comment on these investigations, but the former president routinely posts statements on social media denying allegations against him, often using hyperbolic rhetoric such as comparing the United States to “broken, Third-World Countries.”
Of course, all the standard disclaimers should apply. All of these investigations are ongoing and have not led to charges against Donald Trump. They may never lead to such charges. If Trump is charged, the courts must afford him a presumption of innocence until he is convicted. And even if prosecutors are convinced that they have an airtight case, they may be reluctant to file charges against a former president whose supporters have already threatened violence against people and institutions associated with the investigations into Trump — and, in at least one case, engaged in actual violence.
Nevertheless, the sheer diversity of the state and federal statutes that Trump may have violated is astounding.All told, it’s four criminal investigations — two federal and two state-based — which together scrutinize Trump’s conduct before, during, and after his presidency. Even if only one of these investigations leads to a conviction, the elderly Trump could potentially spend the rest of his life behind bars. While some of the criminal statutes Trump may have violated carry penalties of only a few years in prison, others carry maximum sentences of up to 20 years.
It’s a lot to keep track of, and many important details about these investigations are not publicly known and may never be revealed to the public unless Trump is eventually indicted. The US Department of Justice, in particular, has very strong rules and norms against speaking about ongoing criminal investigations — especially when those investigations involve major political figures.
Worse, while DOJ is reluctant to speak about its investigations into Trump, Trump certainly is not. And that means that many initial reports about these investigations may be based on dubiously accurate social media posts by Trump himself.
With these caveats in mind, here is our best attempt to explain what we do know about the criminal investigations into Trump.
The DOJ’s Mar-a-Lago classified documents investigation
The investigation into Trumpworld that most recently seized headlines is, perhaps at first glance, the most banal: a federal investigation into possible mishandling of classified documents.
The FBI characterized some of these documents as “classified/TS/SCI,” a designation that refers to “sensitive compartmented information” — information “concerning or derived from intelligence sources, methods, or analytical processes” that the government typically treats with extraordinary caution. Documents containing this kind of information are normally stored in specialized facilities designed to prevent the information from getting out — and not in the personal residence of a former government official.
For obvious reasons, the FBI hasn’t been especially forthcoming about what was in the documents seized from Trump; on August 26 the Justice Department released an affidavit filed as part of the investigation, but it was heavily redacted and offered only a few new bits of information.
An attachment to the search warrant, which a federal court made public earlier this month, also identifies three federalcriminalstatutes that the FBI believes Trump may have violated, all of which involve the destruction, concealment, or mishandling of certain government documents.
Most notably, the FBI believes that Trump may have violated a provision of the Espionage Act that makes it a crime to “willfully” retain certain national security information that “the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation,” rather than turning that information over to an “officer or employee of the United States entitled to receive it.”
The Justice Department reportedly tried to negotiate with Trump for the return of these documents, and sought to retrieve them via a subpoena. DOJ sought a search warrant after an informant tipped them off that Trump still had classified documents at his private residence, despite the fact that one of Trump’s lawyers had signed a written statement claiming that Trump had returned all the material marked as classified that he’d stored at Mar-a-Lago. Federal prosecutors detailed that history in a court filing Tuesday.
Violations of the relevant provision of the Espionage Act can lead to a prison sentence of up to 10 years, but it is still unclear whether Trump will face criminal charges for allegedly stealing these documents — or whether those charges will come anytime soon. And there are several reasons to believe that the Justice Department will move cautiously before indicting a former president whose supporters violently attacked the US Capitol less than two years ago.
One is a recent Wall Street Journal report stating that “Attorney General Merrick Garland deliberated for weeks over whether to approve the application for a warrant to search former President Donald Trump’s Florida home.” Another is longstanding DOJ policies and traditions counseling against actions that could influence an upcoming election. It’s not impossible to imagine Trump being indicted before the upcoming midterms, but such an outcome is not likely.
What we can say is there are signs that this investigation remains active, and that it could eventually lead to criminal charges. Among other things, the Justice Department told a federal court that the redactions in the released affidavit were necessary to “protect the integrity of the ongoing investigation.”
The Justice Department investigation into January 6
Last January, Garland announced that the Justice Department has “no higher priority” than its investigation into the January 6 attack on the Capitol, and that his department “remains committed to holding all Jan. 6 perpetrators, at any level, accountable under law.”
According to the Justice Department, more than 830 individuals have been charged for alleged criminal activity relating to the January 6 attack on the Capitol. And, if anything, DOJ appears to be stepping up these prosecutions. Last May, as part of its annual budget proposal, the Justice Department sought to hire 131 more lawyers to prosecute cases related to this attack.
It remains unclear whether this investigation is actively investigating Trump’s own role, however — and, if so, how close it is to an indictment against the former president. And the Justice Department is likely to keep an even tighter hold on any information regarding such an investigation into Trump than it has on the Mar-a-Lago investigation. Bear in mind that virtually no one outside of the Justice Department, including purportedly the White House, knew about the FBI’s impending search of Mar-a-Lago until after it had begun.
There is, however, at least one outward sign that Trump is under investigation. Last May, prosecutors subpoenaed the National Archives for the same Trump administration documents that the Archives already turned over to the US House committee investigating the January 6 attack.
While the Justice Department is unlikely to say much about whether Trump could be indicted for January 6-related crimes until after such an indictment takes place, both congressional and judicial officials have indicated that Trump most likely violated at least two federal criminal statutes during his efforts to overturn the 2020 election — one protects Congress from interference, and the other prohibits conspiracies to defraud the nation.
We know that from a lawsuit Trump lawyer John Eastman filed last January in a federal court in California, seeking to prevent the House January 6 committee from obtaining certain emails sent or received by Eastman. Among other things, Eastman claimed that the emails were protected by attorney-client privilege.
Ordinarily, communications between a lawyer and their client are protected from disclosure. But, as a federal appeals court has explained, “communications are not privileged when the client ‘consults an attorney for advice that will serve him in the commission of a fraud’ or crime.” And the January 6 committee argued that Trump may have consulted Eastman in order to violate two criminal federal laws.
Ultimately, Judge David Carter agreed that Trump most likely violated both laws. Among other things, Carter wrote, “Trump attempted to obstruct an official proceeding by launching a pressure campaign to convince Vice President Pence to disrupt the Joint Session on January 6.” The judge added that “the illegality of this plan was obvious.”
Of course, if Trump is eventually indicted for violating either statute, the Justice Department will carry a heavier burden than the January 6 committee had to overcome in order to convince Judge Carter that some of Eastman’s emails were not privileged. Trump, like any criminal defendant, will be entitled to a jury trial. And the Justice Department will have to prove its case beyond a reasonable doubt.
But Carter’s opinion suggests that there is at least some low-hanging fruit that the Justice Department can pick if it decides to bring criminal charges against Trump.
The Georgia election investigation
Last January, Fulton County District Attorney Fani Willis’s office asked a Georgia court to convene a special grand jury “for the purpose of investigating the facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the State of Georgia.” That includes the Trump campaign’s attempt to create a slate of fake members of the Electoral College who would fraudulently tell Congress that the state’s electoral votes were cast for Trump.
Willis informed these 16 fake electors that they are targets of the investigation — meaning that they are at risk of criminal charges — although a state judge ruled last month that Willis may not herself pursue charges against one of these fake electors because she has a conflict of interest. That fake elector could still be charged by a different prosecutor who does not answer to Willis.
Willis’s investigation is also targeting at least one person in Trump’s inner circle. Less than two years ago, Rudy Giuliani was a central figure in Trump’s effort to overturn the 2020 election — known for his clownish lawyering in a November 2020 lawsuit and for an equally clownish press conference held in the parking lot of a Philadelphia landscaping company. Earlier this month, he was in Atlanta to testify before the special grand jury. Giuliani has also been informed that he is a target of the investigation.
Meanwhile, a lawsuit involving an even more prominent Trump ally offers another limited window into what matters Willis’s office may be investigating. Last month, Sen. Lindsey Graham (R-SC) was subpoenaed to testify before the Georgia grand jury. Shortly thereafter, he asked a federal court to quash the subpoena. His strongest argument is that the Constitution’s speech and debate clause, which prohibits sitting members of Congress from being questioned about their “legislative” activity but not their “political” activity, applies to this investigation.
In rejecting Graham’s attempt to quash the subpoena in its entirety — because Willis’s investigation seeks at least some information that is unrelated to Graham’s legislative duties — Judge Leigh Martin May’s opinion lays out several topics that the grand jury is likely to ask Graham about, including Graham’s “potential communications and coordination with the Trump Campaign and its post-election efforts in Georgia.”
Additionally, Willis’s inquiry wishes to explore two phone calls between Graham and Secretary Raffensperger, where Graham allegedly “questioned Secretary Raffensperger and his staff about reexamining certain absentee ballots cast in Georgia in order to explore the possibility of a more favorable outcome for former President Donald Trump.”
(Litigation over whether Graham has to testify is ongoing, so it remains to be seen whether he actually will. Other members of Trump’s inner circle and fellow Republicans like Gov. Kemp are also fighting subpoenas to testify in the Georgia probe.)
Of course, even if Giuliani, Graham, or othersare eventually charged or convicted of a crime, it remains an open question whether any of their actions could also implicate Trump. But there are a few Georgia criminal statutes that Trump’s broad efforts to overturn the 2020 election, and specifically his “find 11,780 votes” phone call with Raffensperger, might violate.
One such law makes it a crime to willfully tamper “with any electors list, voter’s certificate, numbered list of voters, ballot box, voting machine, direct recording electronic (DRE) equipment, or tabulating machine.” And while no evidence has yet emerged that Trump personally tampered with any of these items, Georgia law also makes it a crime to, “with intent that another person engage in conduct constituting a felony,” solicit another person to commit such a felony. Meanwhile, another state law specifically makes it a crime to engage in “criminal solicitation to commit election fraud.”
If convicted of either crime, Trump “shall be punished by imprisonment for not less than one nor more than three years.”
The New York investigations into the Trump Organization
Finally, Trump — or, at least, his businesses — are the subject of two related financial fraud investigations, at least one of which has a small chance of ending in criminal charges against Trump.
Letitia James, the New York attorney general, has spent the better part of three years investigating whether the Trump Organization, Trump’s flagship company, misled either banks or tax officials about the value of its assets — allegedly inflating their value when seeking a loan from a bank, or minimizing their value in order to reduce taxes. James even deposed Trump earlier this month as part of this investigation, although Trump spent that interview repeatedly invoking his Fifth Amendment right against self-incrimination.
James’s investigation is civil and not criminal, but it could potentially lead to an extraordinary sanction against Trump’s business. At one point, James appeared to be laying the groundwork to invoke New York’s “corporate death penalty” statute — a law that allows the state attorney general to ask a court to effectively dissolve a business that engages in “repeated” or “persistent fraud or illegality.” In a June interview, however, James signaled that she may not “want to go that far.”
James’s investigation parallels a similar criminal investigation that is currently led by Alvin Bragg, the Manhattan district attorney. Like the state-level investigation, this Manhattan investigation has been going on for a few years. Bragg’s predecessor, Cyrus Vance, even had to fight off an effort to sabotage this investigation in a 2020 Supreme Court case.
The latest news about this criminal investigation, however, suggests that it is unlikely to lead to charges against Trump. While former Trump Organization CFO Allen Weisselberg pleaded guilty last week to allegations that he did not pay taxes on $1.7 million in compensation — including an apartment, two cars, and private school tuition for family members — he agreed only to testify against the Trump Organization if called to testify in a trial against the company, and is not expected to assist a broader inquiry into Trump himself.
Meanwhile, the transition from Vance to Bragg appears to have injected more caution into the Manhattan DA’s office. Shortly after Bragg took office at the beginning of this year, a senior lawyer who played a significant role in the Trump investigation resigned from the DA’s office. “I believe that Donald Trump is guilty of numerous felony violations,” attorney Mark Pomerantz wrote in his resignation letter, which protested Bragg’s decision “not to go forward with the grand jury presentation and not to seek criminal charges at the present time.”
In a July interview, Pomerantz said that he thought that Bragg “and the new team were focused on the risk that we could lose the case” against Trump. Again, to win a criminal case against Trump, prosecutors would have to prove that case beyond a reasonable doubt.
In any event, it is possible that either James’s investigation or Bragg’s office will uncover new evidence that will change Bragg’s mind. For the moment, however, the New York investigations appear unlikely to lead to criminal charges against Trump.
The three other investigations, by contrast, appear to be more likely to end in Trump’s indictment and possible conviction.
So what should we take away from all of this?
The purpose of a criminal investigation, and ultimately of a prosecution, is to convince a jury to convict a defendant after a full criminal trial has taken place. It is not to provide the media or the public with regular updates about what law enforcement knows about potential suspects.
Especially within the context of federal investigations, these norms exist both to protect the investigation itself — if a suspect learns too much about what information law enforcement is seeking, they could destroy evidence or tamper with witnesses — and to protect potential suspects. When someone is formally charged with a crime, they have an opportunity to vindicate themselves at trial. If they are merely the subject of accusations tossed off by government officials, they have no real way to protect or rehabilitate their reputation.
For these reasons, anyone eager to see how the investigations into Trump will end must have patience.
One other factor that voters — and, especially, journalists — should bear in mind as they evaluate what is going on with these investigations is that while the Justice Department will ordinarily be very tight-lipped about an ongoing investigation (and responsible state-level prosecutors will also not be especially forthcoming), Trump will not. And he is likely to tell lies and half-truths to mislead the public and rile up his supporters.
Here’s an example: During its search of Mar-a-Lago, the FBI took three passports from Trump’s residence. A team of investigators tasked with screening the searched materials for extraneous documents quickly discovered that they had the passports, and they were returned to Trump. In a statement, the FBI said that it “follows search and seizure procedures ordered by courts, then returns items that we do not need to be retained for law enforcement purposes.”
Compare that narrative to how Trump characterized the FBI’s brief acquisition of these passports:
Those aren’t reasons to let a man who tried to overturn the result of a presidential election off the hook if he committed a crime, but they are likely to inspire prosecutors to tread cautiously.
It is likely, in other words, that a cloud of uncertainty will loom over Trump’s fate for quite a while.
Update, August 31, 10:30 am: This story, originally published August 19, has been updated with information on an affidavit that led to the FBI search of Mar-a-Lago, released August 26, and with information about an August 30 court filing that included more details on the federal government’s back-and-forth with Trump’s team over obtaining classified documents.
LIZ TRUSS’S most senior adviser has been interviewed by the FBI as a witness in relation to an alleged plot to bribe an American official and influence a US election, it emerged yesterday.
Mark Fullbrook, 60, who ran the Prime Minister’s leadership campaign and is now chief of staff at No 10, was questioned about work he did for the banker accused of the crime.
Mr Fullbrook provided research in 2020 for Julio Herrera Velutini, a Venezuelan-Italian banker now accused of bribing the governor of Puerto Rico around the same time.
Mr Fullbrook has said he did not break the law and was not aware his then client may have had corrupt motives for hiring him as a political consultant.
According to a US indictment, Mr Herrera Velutini, a Mayfair-based Tory party donor, allegedly promised Puerto Rico’s governor, Wanda Vázquez Garced, $300,000 for her re-election campaign in 2020 provided she sacked the head of the island’s financial regulator.
The watchdog was probing Bancredito, the bank Mr Herrera Velutini owns, and according to the indictment, the Governor agreed.
Mr Herrera Velutini denies wrongdoing and is contesting the charges against him, which carry a total maximum penalty of 20 years in jail.
He was paying CT, a consultancy founded by Sir Lynton Crosby, who has helped run several Conservative campaigns in the UK, for services that may have helped the Governor with her re-election bid.
The Sunday Times reported Mr Fullbrook was the lead consultant on the project and flew to Puerto Rico in February 2020, before the election.
Vazquez Garced sacked the financial regulator in February 2020, but lost her re-election campaign in August that year.
According to the US Department of Justice’s indictment, Mr Herrera Velutini then tried to bribe her successor, by offering funding in return for a favourable audit of his bank.
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With tensions between the United States and Russia at a level not seen since the Cold War, and likely not abating no matter the direction the war in Ukraine takes, our national security depends on the integrity of our intelligence community. The FBI and CIA must be able to securely plan covert operations, and to employ Russian double agents to carry them out.
In this context, just imagine an American FBI agent with top-secret clearance writing this letter to the Russian intelligence chief stationed in Washington:
“Soon I will send a box of documents. They are from certain of the most sensitive and highly compartmentalized projects of the U.S. Intelligence community. All are originals and aid to verifying their authenticity. Please recognize for our long-term interests that there are a limited number of persons with this array of clearances. As a collection they point to me I trust that an officer of your experience will handle them appropriately. I believe they are sufficient to justify a $100,000 payment to me.”
Sound farfetched? Not possible? Think again, because Robert Hanssen, an FBI agent assigned to counterintelligence and with top-secret clearances, began his nearly 20 years of spying for the Russians with a letter almost identical to this one. Hanssen, who started spying in the 1980s, is locked in federal custody and will remain so for the remainder of his life. But he was responsible for the betrayal of our double agents in Moscow, and leaked a steady pipeline of American intelligence to Russia for two decades. His legacy of treachery continues to reverberate today.
As the daughter of an FBI agent and a third-generation federal prosecutor, I grew up believing the men and women of the FBI were always the good guys, combatting crime and working hard toward the ultimate goal of keeping us all safe. My father was that kind of FBI agent, and so were the people I worked with. My father said Hanssen’s case was a devastating black mark against the Bureau.
While so many were working hard to keep Americans safe, Robert Hanssen was working just as hard to betray the agency he had sworn allegiance to and the people and country he had sworn to protect. His selling of national secrets to the Russians cost lives, including that of Dmitri Polyakov, one of our most effective Russian assets, and gutted operations critical to national security.
According to the Webster Commission report done after Hanssen’s arrest, Hanssen carried out of the FBI building a volume containing top-secret and special-access program information about “an extraordinarily important program for use in response to a nuclear attack.” The report puts a $10-billion value on the information he gave the Russians. In the process, he also besmirched the reputation of the FBI and branded it in ways that echo still: that it is an agency under siege, one unable to regulate itself from within, and one that is prone to infiltration. A 2003 report by the Justice Department’s Office of the Inspector General is harsh in its criticism: “[The FBI] suffered from a lack of cooperation with the CIA and from inattention on the part of senior management… The FBI failed to work cooperatively with the CIA to resolve the cause of these losses or to thoroughly investigate whether an FBI mole could be responsible for these setbacks.” In short, the FBI failed to police itself.
“I have no reason to believe that there isn’t a recruitment in place right now in the FBI, the CIA, and the DOE.”
Hanssen is where he should be, in jail for the rest of his life, but still at large are questions about his motives, his psyche, and the damage he caused; whether the FBI has blinded itself to the lessons it should have learned; and whether we are any better protected today from a new Robert Hanssen than we were from the actual one who ripped the guts out of America’s secrets.
In writing my book, A Spy in Plain Sight, about Hanssen and the damage he caused to the FBI and to our country, I interviewed scores of past and present FBI and CIA agents, and I asked all of them the same question: “Can there be another Hanssen today?” The answer was a unanimous and emphatic “Yes!” This answer was often followed by an even more chilling qualifier: “And there probably already is.”
These agents know that the FBI and CIA have implemented more procedural safeguards because of Hanssen, including increased polygraphing of agents, and extensive financial disclosures by them. But fractured domestic politics and policies encourage present-day would-be spies. For example, when the majority of the Republican Party refuses to acknowledge the legitimacy of Biden’s presidency, or when seasoned senators and the minority leader of the House of Representatives continue to paint the Jan. 6, 2021, attack on the United States Capitol as a tourist prank gone awry, the fabric of the nation is weakened.
These fissures quickly become wide cracks, not just on the American body politic, but in places like the FBI that are dedicated to defending the Constitution and on the front lines of upholding the rule of law. Such an onslaught has exponential ramifications, as it fundamentally undermines morale and functioning. It gives implicit license to those within such organizations who might have financial problems or are discontented with their career advancement or exist at the edge of a group culture—or are simply looking for a thrill to perk up their bureaucracy-bound lives—to give in to their own worst instincts, the dark angels of their psyche.
When that line gets crossed, you can institute all the polygraphs you want, run all the credit checks imaginable, but there’s always going to be one special agent with a high security clearance who slips through the net, scoops up a handful of vital secrets, and writes a letter to the Russians.
For a recent example of just how this line gets crossed, consider Jonathan and Diana Toebbe, the Maryland couple arrested last year for trying to sell some of America’s most closely guarded nuclear submarine secrets. Jonathan Toebbe, a nuclear propulsion expert who worked for the U.S. navy as a civilian, allegedly tried to sell nuclear propulsion secrets to an undercover FBI agent through a series of dead drops featuring memory cards hidden in peanut butter sandwiches, Band-Aid wrappers, and gum packages.
Toebbe allegedly sent a brown envelope to an unidentified foreign government in April 2020. Inside the envelope were sensitive U.S. Navy documents and instructions on how the country—believed by security experts to be a U.S. ally—should reply using an encrypted email service.
In Toebbe’s case, the foreign government turned over the contents of his envelope to the FBI, which began an undercover operation to catch him. But what if Toebbe had sent the envelope to the Russians? Would the Russians have turned over valuable intel to the FBI? I think not.
Of the 150 U.S. citizens convicted of or prosecuted for espionage between the start of World War II and shortly after Hanssen’s arrest, 42 percent of them were government employees. As Dave Szady, former assistant director of the FBI’s Counterintelligence Division, told me: “Is it going to happen again? Well, is the bank going to be robbed again? Is somebody going to be murdered again? How about corruption? You’d think politicians would learn that corruption isn’t a good idea, but do you think it will occur again? Of course it will. People commit crimes, and they’re not going to stop. And espionage is a crime.”
FBI agents arrest counterintelligence agent Robert Hanssen (C) near his home February 18, 2001 in Vienna, Virginia. According to the FBI, Hanssen had just placed a package of classified material in a park he had been using since 1985 to exchange documents with Russian spies. Hanssen is currently serving a prison sentence of life without parole.
FBI Special Agent Jack Thompson, who was involved in the Hanssen mole hunt, said, “After 30 years in the FBI, 17 of those as the counterintelligence officer at the Department of Energy (DOE), I have no reason to believe that there isn’t a recruitment in place right now in the FBI, the CIA, and the DOE.”
And, if the FBI has a mole, how can it act effectively against another Hanssen or Toebbe? Even in a mature democracy, the rule of law can hang by a slim thread. An FBI that fails to police itself adequately or allows its mission to become subverted or its vast investigative powers to be abused could be the only difference between government of, by, and for the people and government by a tyrannous few.
Odds are, one special agent or officer may have already crossed that fateful line, and sold secrets to the Russians. And this time it’s not only U.S. assets and operations abroad that are endangered—it’s democracy itself.
The only way to strengthen institutions like the FBI and CIA is to restore integrity and confidence in the rule of law. To do that, we must stop politics from bleeding into intelligence agencies. Political fissures should always be secondary to the importance of the Constitution and democracy.
In analyzing Hanssen’s motive for spying, money is certainly a factor. But, according to his psychiatrist, Dr. David Charney, and his best friend Jack Hoschouer, Hanssen was also motivated by the glamour of being a James Bond-type character, by his constant need to be appreciated for his brilliant work, and by a warped sense that in turning over secrets to the Russians he would somehow make America stronger in the long run. These motivations are hardly unique to Robert Hanssen—they are universal in application.
A source I can identify only as one of the nation’s leading authorities on cutting-edge forensics—the kind of expert both Fortune 100 companies and government agencies rely on to avoid penetrations and find the culprits when they happen—told me, “Once you’ve been cleared and you’re inside the FBI or CIA or NSA, you’re trusted, so nobody’s watching you, and you can do anything you want. The kind of information that you have access to at that point would just blow anyone away. It’s better than make-believe.”
Real life, not make-believe, is warning us: We had better learn from past failings, like Hanssen, lest history repeats itself.
Russiagate special counsel John Durham is in the homestretch. His grand jury wrapped up work last week, apparently with no new indictments on the horizon. Attorney General Merrick Garland is said to anticipate receiving his final report by the end of the year. And Durham is gearing up for his last trial: the prosecution of Igor Danchenko, the principal source for the discredited Steele dossier.
That last one should be grabbing our attention. We now know that the so-called dossier compiled by former British spy Christopher Steele was a Clinton campaign production. It is one of the great dirty tricks in modern political history: The 2016 Democratic presidential campaign colluded with the incumbent Democratic administration’s law-enforcement and intelligence apparatus to portray their partisan opposition, Donald Trump, as a Kremlin mole, then made the smear stick to the point of forcing Trump to govern for over two years under the cloud of a special-counsel investigation.
This enterprise included substantial reliance by the FBI on the bogus Steele dossier in obtaining spying authorization from the Foreign Intelligence Surveillance Court (FISC) — on sworn representations that the bureau believed Trump was in a “conspiracy of cooperation” with Vladimir Putin’s anti-American regime.
Danchenko turns out to have been Steele’s principal source for this fever dream. Last year, Durham indicted him on five counts of lying to the FBI. But that’s not the half of it. Last week, in a jaw-dropping court submission, Durham revealed that the FBI signed up Danchenko as an informant and paid him for almost three years — from March 2017 through October 2020.
Igor Danchenko was the most important source for Christopher Steele’s explosive allegations against former President Donald Trump.AP/Manuel Balce Ceneta
Failure upon failure
If you’re keeping score, that would be throughout (a) most of the FISC-authorized surveillance; (b) the Mueller investigation, which somehow failed to detect — or at least to report — that Danchenko misled the bureau; and (c) Justice Department Inspector General Michael Horowitz’s investigations of the FBI’s misconduct in the Trump investigation — in the reports of which there is no indication that Horowitz was told Danchenko was on the bureau payroll and available to be interviewed.
There’s more. Although Danchenko was the most important source for Steele’s explosive allegations against Trump, the FBI did not interview him prior to using Steele’s dossier in its first two sworn surveillance applications, in October 2016 and January 2017. When the bureau finally got around to questioning Danchenko — because it hadn’t been able to corroborate Steele’s claims despite relying on them in court — it learned that Steele appeared to have exaggerated and possibly fabricated rumors and innuendo about Trump that Danchenko was said to have passed along.
Yet, far from alerting the FISC judges that there was significant reason to disbelieve the information from Steele about Trump — who was by then the incumbent president — the FBI continued to rely on that suspect information in sworn surveillance applications in April and June 2017, based on which the FISC granted additional spying warrants.
Durham’s investigation indicates that Danchenko lied to the FBI multiple times, falsehoods that should have been easy for the nation’s flagship federal investigative agency to run down. Yet they kept him on board, kept paying him.
But it gets worse. While the bureau used inane, unverified information from Steele and Danchenko to suggest to a court that the president of the United States might be a Russian asset, the FBI had intelligence indicating that Danchenko himself might actually have been a Russian asset.
That was detailed in yet another Durham court filing last week, in the Virginia federal court where Danchenko is soon scheduled to be tried. The prosecutor related that Danchenko was “the subject of an FBI counterintelligence from 2009 to 2011.”
Durham’s investigation indicates that Danchenko lied to the FBI multiple times.AP/Manuel Balce Ceneta
Why was the investigation closed? Did the FBI end up finding out that Danchenko was not really a Russian asset? Well, no. In fact, reports from its investigation claim that in 2008, when he was working at the Brookings Institution (a center-left Washington think-tank), Danchenko offered to pay two of his fellow researchers for classified information if they got jobs in the incoming Obama administration. There is no indication anything came of this, but upon being tipped off, the bureau did some digging and learned that Danchenko had been in contact with people it was investigating as possible Russian intelligence officers.
So what happened? Unbelievably, Durham now explains that the counterintelligence investigation was closed because “the FBI incorrectly believed that the [Danchenko] had left the country.”
Yup, you read that correctly.
Déjà vu?
Durham’s investigation suffered a significant setback in the spring when a Washington, DC, jury acquitted Democratic lawyer Michael Sussmann. Durham’s prosecutors presented abundant evidence that Sussmann had falsely told the FBI that he was not working for the Clinton campaign when he peddled spurious information about a supposed Trump-Putin communications back-channel. But the prosecutors curiously portrayed the FBI as the victim of Sussmann’s machinations when the proof suggested that the bureau was not fooled at all — and seemed more like a willing participant in building the Trump/Russia political narrative.
Durham revealed that the FBI signed up Danchenko as an informant and paid him for almost three years.AP/Evan Vucci
Could Durham run into the same problem in prosecuting Danchenko? Could be. After all, Danchenko, like Sussmann, is charged with lying to the FBI, and a jury may once again be left to wonder whether the bureau was actually fooled.
Yet, these prosecutions are secondary to the vital story: What role did the FBI, whether by misfeasance or malfeasance, play in the Clinton campaign’s project to paint Trump as a clandestine agent of the Kremlin? For now, we have to hope that Durham’s final report will answer that question.
Andrew C. McCarthy is a former federal prosecutor.
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