The President under investigation

I have continued to watch the news with regard to the Russian intelligence operations against the US elections in 2016, part of which included cyber operations but also clearly included good ol’ human intelligence operations. I’ve continued to watch, in part for the sadness over how this is continuing to impact our country, our House and Senate, and our new administration, but also out of professional curiosity – I am these days teaching counterintelligence to undergraduates and graduate students.

One thing that continues to amaze me is the Trump’s obsession with being told that he isn’t under investigation, even when others are (criminal and / or counterintelligence), and even when there are much broader counterintelligence and / criminal investigations underway, to include a special prosecutor. In his letter to then FBI Director Jim Comey, informing him that he was being fired (link), President Trump said, “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation…” This was dated 09 May 2017, I should add.

So, one thing that I always keep in mind is this simple question: Would an FBI Director lie to the President of the United States, if the President were the subject of an active counterintelligence investigation? 

There’s no precedent for this that I know of, of course.

So, would he?

Well… Yes. In matters of the most sensitive intelligence operations, it can be required. One recent and well documented case is from 2013, in open and public testimony before Congress, in which the then-Director of National Intelligence Jim Clapper was asked whether the National Security Agency was collection “any type of data at all” on Americans, and he calmly replied, “No.” (Link) He lied, because the program under which this was happening at the time, was highly classified – but was later revealed.

So, yes. It does happen, when it comes to very classified operations. Don’t make a shocked face. Lies can be needed sometimes.

Would a counterintelligence investigation involving the President of the US fall under the that same broad umbrella of “oh my god super secret”?  I am guessing that it probably would.

If it’s so super-secret that the Director of the FBI – which is charged, under Executive Order 12333, to “…coordinate the clandestine collection of foreign intelligence collected through human sources or through human-enabled means and counterintelligence activities inside the United States” – can’t even tell the President about a counterintelligence operation, because he/she is the target of the operation, what are the reporting requirements, then?

Under federal code (50 U.S.C. § 3091(a)(1), actually), there is a requirement to “ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity as required by [the] title.” But not the whole of the Committees – just two senior Democrats and two senior Republicans from each committee. These are collectively known as the Gang of Eight, and they are whom intelligence agencies notify of the really secret things – to include covert operations, cyber attacks, and the like – for this express purpose of intelligence oversight by the legislative branch.

Is that important? Maybe. During the Comey testimony before the Senate Select Committee on Intelligence on 08 June (link), SEN Rubio asked Mr. Comey, “This investigation is full of leaks, left and right. Ever wonder why all the things in this investigation, the only thing that has never been leaked is the fact that the President was not personally under investigation? Despite the fact that both Democrats and Republicans and the leadership of Congress knew that and have known that for weeks?”

And what caught my attention was his answer. “I don’t know. I find matters that are briefed to the Gang of Eight are pretty tightly held in my experience,” he said.

Briefed to the Gang of Eight? He’s briefed the Gang of Eight on this? What was so incredibly classified that only those eight could be told? My guess? Yes – a Trump CI investigation.

So, I went back and checked. On March 9 (Link), then-Director Comey met with the Gang of Eight. He, the FBI, and the Committees declined to comment on what the briefing regarded.

That’s how you keep secrets. That’s how you conduct a secret counterintelligence investigation of the President, while saying to him that he is not under investigation – three times, if you must.

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