I am not aware of another president who has weighed in against ongoing criminal prosecutions in the overt, hostile, and unrelenting way that President Trump has. This is a breach of propriety and of historical norms. Presidents don’t weigh in on those things. They don’t try to tip the scales of justice for or against a particular defendant. In our system, intervention from the outside is not only considered inappropriate—it is inappropriate. It undermines the operation of a fair system of justice. It sows seeds of mistrust. President Obama was rightly castigated for a single offhand remark, when he said of the Clinton investigation that he thought there was nothing there. The political world exploded: Was he trying to telegraph something to investigators? Was he sending a coded message to the attorney general? It was not a smart thing to say, as Obama surely realized. And yet it was not even in the same universe as what President Trump does on a daily basis—casting doubt on the legitimacy of the prosecution of Paul Manafort, as he has done since June 2018, and calling the Mueller investigation a “witch hunt,” as he does all the time.
For an FBI agent, watching the president seek to interfere with the ordinary process of justice is especially galling—an affront to our constitutional system. The work of every agent at every waking moment is governed by intricate procedures whose aim is to ensure that every step taken is by the book. The process has to be fair and rigorous from start to finish—for the sake of subjects and for the sake of justice. It is a high-minded regime. The Bureau suffers lapses, of course, as any institution does, but the standards are taken very seriously.
Let me walk through how this plays out in real life. The FBI receives an enormous amount of information every day. People bring the Bureau tips through phone calls, emails, and texts, or by simply coming into one of our field offices, sub-offices, or legat offices around the world. More than seventeen thousand police departments and agencies in America, and hundreds more beyond our borders, routinely pass on leads to the FBI. Our partners in the U.S. intelligence community and friendly foreign services share information about potential national-security threats. The FBI is constantly recruiting and developing informants to augment its effectiveness. Meanwhile, the tens of thousands of ongoing FBI investigations are generating new information about previously unknown threats and crimes. Paradoxically, as the Bureau improves its ability to collect information, it becomes harder to sort through what we have and decide whether to open a new case. The FBI’s ability to make those decisions in an impartial and independent way is the foundation of public confidence. It doesn’t take shortcuts, it doesn’t skirt the law, and it regards the web of rules and guidelines that govern all official activity as formal structures worthy of our dedication and of public faith, not as impediments to an all-against-all battle of wills.
Historically, determining which cases to open has been a source of controversy. For most of the FBI’s history, until the mid-1970s, the Bureau was accused—with cause—of investigating people and groups based on their political beliefs or social activism rather than on any actual threat. Exercising a hold over powerful individuals, in the form of subtle or not-so-subtle blackmail, was another motivation: Thick dossiers were compiled on figures such as Martin Luther King, Jr. and John F. Kennedy. Intelligence cases on some political figures sometimes went on for years, pointlessly and unjustifiably. Congressional investigations such as the Church Committee hearings in 1975 led to calls for a charter to establish clear restrictions on the FBI’s activities. In 1976, Attorney General Edward Levi issued the first set of official guidelines to govern the FBI’s domestic operations. For the first time, the agency had a clear set of ground rules that, if followed, would ensure that the FBI executed its mission fairly, independently, and according to the law.
In 2008, Attorney General Michael Mukasey issued a revised set of guidelines. The FBI has been operating under them ever since. To ensure that agents understand how to operate in compliance with the AG guidelines, the FBI created the Domestic Investigations and Operations Guide—usually referred to by the acronym DIOG (pronounced “DYE-ogg”). The DIOG is a public document. Anyone can read it.
What follows is based on the unredacted portions available on the FBI’s website. The guide lays out the framework for how the FBI conducts different levels of investigations. It identifies the tools, or investigative techniques, available to investigators at each level. It defines the threshold, or “predication,” that is necessary to initiate an investigation, and it specifies the oversight regime that monitors compliance. Finally, it sets the requirements for FBI involvement in sensitive investigative matters, enterprise investigations, undercover operations, foreign-intelligence investigations, and undisclosed participation in criminal organizations and other illegal activity. The guide specifically prohibits the initiation of any type of FBI investigation based solely on race, ethnicity, national origin, or religion, or on what people say when exercising their First Amendment rights.
The DIOG identifies three types of investigations that agents can initiate. The most basic level is called an assessment. To begin an assessment, an agent need only have an authorized purpose and a clearly defined objective. Most assessments are initiated when the FBI receives unsolicited, unvetted information that someone has done something suspicious. Assessments are documented in the Guardian system. Although there are different types of assessments, the most common authorized purpose is to seek information about possible violations of federal criminal law or threats to national security. The agent’s supervisor has to approve an assessment and, like every Bureau investigation, it must be documented on specific forms in FBI systems. For an assessment, the permissible tools include reviewing FBI information, receiving information from other government entities or the public, querying online resources, interviewing people, conducting physical surveillance, and using confidential informants. Agents can also use grand jury subpoenas to compel the production of information or testimony, but they cannot use search warrants. The justification for the continuation of an assessment must be reviewed by a supervisor every thirty days.
The next level up is the preliminary investigation, or “PI.” To initiate a PI, an agent must have “information or an allegation” that activity constituting a federal crime or threat to national security has taken or will take place. This could be as simple as an informant telling you a person is a member of a known terrorist organization or finding an online threat to a specific person. The PI uses all the same tools as an assessment but adds some others. For a PI, an agent can use closed-circuit TV to monitor a location without needing on-site physical surveillance. Agents can surreptitiously listen to and record a subject’s conversation as long as they do it with the consent of another participant to the conversation. Undercover operations are permitted in a PI. Agents can use national-security letters to secure information from communications providers—such as account information and toll records—but not the content of those communications. Agents can ask the post office to tell them whom a subject receives mail from but cannot read that mail. The opening of a PI must be approved by a supervisor, and its term is limited to six months, with the possibility of a single six-month extension. An agent’s work on a PI must be reviewed by the supervisor at least once every ninety days. During the PI, it is likely that an agent might also ask for the involvement of a prosecutor to provide legal support to the investigation.
The full investigation, or “FI,” is the most robust. The purpose of the investigation is to collect information about, or to prevent, a federal crime or threat, and an agent must have an “articulable factual basis” for believing there is such a crime or threat. With an open FI, an agent is free to use any of the FBI’s most sophisticated and sensitive investigative techniques, many of which require elevated levels of approval and oversight. An agent must have an open FI to request a search warrant, conduct a polygraph examination, or seek court authorization to conduct electronic surveillance. Opening an FI requires at least a supervisor’s approval and may require additional approval from FBI lawyers and senior managers from the FBI and the Department of Justice. A full investigation has no time limit, but the work must be reviewed every ninety days by the agent’s supervisor. The case agent on an FI usually has an assistant U.S. attorney to provide legal support.
Day to day, agents and analysts sort through the relentless tide of incoming information. They don’t open cases or conduct investigations for political reasons—that is out of bounds—or because they happen to find the circumstances interesting. Rather, agents review the facts they have against the framework of authorities provided by the attorney general’s guidelines and the DIOG. They discuss the result of that review with their supervisors and together make a decision. If they fail to initiate an investigation when the facts and the guide call for one, they are not doing their job.
That mandate, that directive, is burned into the conscience and the soul of every agent. No matter who the subject is.
Let’s imagine, for example, that the Justice Department receives a complaint from someone who says that a well-known political consultant has published an article in an online trade magazine arguing for more favorable U.S. trade policies toward China. The complainant alleges that the consultant is advocating on behalf of the Chinese government. Justice reads the article and checks to see if the consultant has registered with the department as a foreign agent, which is required by law. When they discover that she has not, Justice refers the matter to the FBI to determine if the matter should be investigated
The FBI reviews the referral. The content of the statement by itself is not an issue—it’s a free country, and protected speech by itself can’t form the basis of an investigation. However, the fact that the consultant could be on the payroll of a foreign government and has not registered as a foreign agent raises the possibility of a violation of the Foreign Agents Registration Act of 1938. On that basis, and because the political consultant lives and works in D.C., the FBI passes the referral to the Washington field office for follow-up. After reviewing the information, the political-corruption squad opens an assessment. The assessment doesn’t yet have a lot of information, but the agent does have an authorized purpose and a defined objective: to collect information about a possible violation of the Foreign Agents Registration Act.
With the assessment open, the agent checks FBI databases, other government information, and publicly available information online. From that work, he fully identifies the consultant and collects information about her business, her residence, and her employees, clients, and associates. He conducts physical surveillance to confirm this information, and in the process of doing so he observes a car registered to a Chinese corporation pull up to the consultant’s office. His review of public information and other government intelligence tells him that the Chinese corporation is a state-owned and -controlled enterprise. Realizing that one of his squad mates has an informant who works in the same building as the consultant, the agent meets with the informant and asks him to try to interact with the consultant.
Several days later, the agent gets a call from the informant, who has just had lunch with the consultant. The informant reports seeing a group of “Asian businessmen” leaving the consultant’s office before they met for lunch. At lunch, the consultant revealed that she has just agreed to work for a prominent governor who has decided to run for the U.S. Senate.
As good agents do, this agent reviews what he has. The vehicle registered to the Chinese corporation, the meeting with the Asian businessmen, and the public statements advocating for China, combined with the lack of a foreign-agent registration on file with DOJ, all add up to an “allegation or information indicative of criminal activity or a national security threat”—the official standard for a preliminary investigation. The agent proposes to his boss that they convert the assessment to the next level. The supervisor thinks about the additional fact that the consultant is working for a governor who is also a candidate for high national office. The supervisor knows that according to FBI guidelines, any case involving a domestic political official or a domestic political candidate must be considered a “sensitive investigative matter,” which means that the field office’s chief division counsel and the special agent in charge will have to approve the opening of a PI. Also, he will need to report the investigation to the local U.S. attorney and FBI headquarters within fifteen days. And headquarters must report the matter to the Department of Justice. This investigation now has extensive, high-level oversight.
The PI also gives the agent new investigative authorities. He can install closed-circuit television to identify other vehicles and people at the consultant’s office. He can use national-security letters to request information from the phone company and the internet service providers that serve the consultant and her office. This will not get him the content of her communications, but he can get important historical account information, toll records, and information that can reveal the identities of people who are in contact with the consultant. He can also get authorization from the court to collect information about the consultant’s incoming and outgoing calls as they occur—though he can’t listen in. Further, he can ask the prosecutor for a grand jury subpoena that will compel a bank to provide the agent with financial records for the consultant and her business. Finally, he can now have the informant consensually monitor conversations with the consultant. The informant will do this by wearing a wire to their meetings.
Imagine now that from all this work, the agent confirms that the consultant is indeed deeply engaged with a Chinese corporation, one that is owned and controlled by the Chinese government. The consultant’s bank records show regular payments from the corporation to the consultant. The telephone records show numerous calls to the corporation. Email records indicate correspondence between the consultant and the president of the corporation, who also holds a position in the Chinese government and has close ties to the Chinese leadership. Additionally, the informant has produced a recording of a conversation with the consultant in which she tells him about a trip she took with the president of the corporation to Mexico City, where she was introduced to a high-level Chinese government minister.
The agent knows that these facts all add up to an “articulable factual basis.” He reviews his findings with his supervisor in the field and officials at headquarters. Both tell him to convert his PI to a full investigation. Both remind him that the matter remains a “sensitive investigative matter.” He documents the conversion, obtains the necessary approvals, and makes all required notifications. In addition to the potential violation of the Foreign Agents Registration Act, the agent knows he has uncovered activity that may be of interest to the foreign-counterintelligence squad, and they agree to join forces. With the authority of a full investigation, they are now free to pursue a federal court order to conduct electronic surveillance of the consultant’s communications. If it were a purely criminal matter, their assistant U.S. attorney would suggest obtaining that order in a local federal court under Title III authority. However, with the possibility of national-security implications, the agents and the prosecutor would likely request authorization from the court established by the Foreign Intelligence Surveillance Act (FISA), in Washington. FISA court proceedings are classified and designed to enable investigators to investigate national-security threats without exposing the investigation to sophisticated state actors. The secrecy of FISA proceedings is also an important protection for the person under investigation—if no violation is found, a classified investigation is closed quietly without damaging the reputation of the subject.
So here’s the bottom line: The FBI derives its authority from federal law and executive orders. The guidelines on how to operate within the law are promulgated by the attorney general. Supervisors and division attorneys apply the same standards to every case they oversee. Intelligence and evidence are collected and documented in the same deliberate manner in every case. All of these procedures are drilled into agents starting on their first day at Quantico. In this way, the FBI tries to ensure that its approach to each assessment is consistent, lawful, and free from bias. It operates in this manner in order, first, to protect the dignity and privacy of the people it is looking into—the vast majority of whom will never be subject to a preliminary or full investigation, much less charged with a crime. Second, it operates this way to ensure that cases going forward are built on a solid foundation of evidence, lawfully collected and fairly evaluated.
It’s in this context that, on June 15, 2018, I read what the president wrote about the Paul Manafort case on Twitter—not understanding what has happened in the courtroom, evidently not even knowing what sentencing is, but saying that the judge had been unfair. Manafort, the former manager of the Trump campaign, had been indicted on a variety of charges and had just had his bail revoked after new charges of obstruction of justice and witness tampering. The president tweeted, “Wow, what a tough sentence for Paul Manafort, who has represented Ronald Reagan, Bob Dole, and many other top political people and campaigns. Didn’t know Manafort was the head of the Mob. What about Comey and Crooked Hillary and all of the others? Very unfair!” Earlier that day, the president had walked out onto the White House lawn and taken impromptu questions. He said, about Manafort, “He worked for me, what, for forty-nine days, or something? A very short period of time.” You think it was forty-nine? It was 144.
Imagine what the judge must have been thinking when she heard the president’s comments. Judges abhor witness tampering. They regard it as a crime committed against themselves and their court. Under normal circumstances, anyone accused of witness tampering who was out on bail would lose that bail and go to jail. That is what happened to Paul Manafort. But what was it like for that judge on her way into work that morning? I had to wonder if she asked herself, What is the president going to say about me if I do the right thing today? Is he going to tweet about this? Send his army of trolls after me? This judge, Amy Berman Jackson, if she thought about it, didn’t care—she went ahead and did what she had to do. But my fear is that someday a judge will care. Someone will be cowed. The fact is, plenty of people in Washington are cowed already: such as the Republicans on Capitol Hill, many of whom believe that the president is unfit for office but are afraid to stand up to him.
If the principle of noninterference with the wheels of justice holds for a president as a broad, general matter, it is a hundred times more important that he not weigh in on anything that affects him personally. Today we have a president who is willing not only to comment prejudicially on a criminal prosecution but to comment on one that potentially affects himself. He does both of these things almost daily—and directly and repeatedly—to millions of followers on Twitter and viewers on television. He is not just sounding a dog whistle, weighing in with a glancing suggestion that can be interpreted. He is lobbying for a result. He is telling the judge, the defendant, and the world his preferred outcome.
People don’t appreciate how far we have fallen from normal standards of presidential accountability. I was offended by Bill Clinton, who plainly lied in his deposition in the Paula Jones case when he denied having sexual relations with Monica Lewinsky. Many people minimized the significance of those lies, saying, So what if he was dishonest about his personal sexual activity—everyone lies about that, it’s okay. It was not okay. But now, with President Trump, we are being battered every day. Every day brings a new low. A new ridiculous assertion. There are literally hundreds of examples. During a fund-raising speech in Missouri, he revealed that he got into an argument with Justin Trudeau and started citing statistics to the Canadian prime minister he acknowledged he had just made up. In a press conference with British prime minister Theresa May, he directly denied saying what anyone can hear him saying in an interview recorded the day before. The president exposes himself as a deliberate liar, someone who will say whatever he pleases to get whatever he wishes. If he were on the box at Quantico, he would break the machine.
What more could a person do to erode the credibility of the presidency? But news reports of such episodes come and go in a blink of an eye. A common reaction is, Of course he did that—it’s Trump. That’s what he does. How is the whole nation not offended?
The president, by calling the Russia investigation a witch hunt, is basically telling the judge, the system, and the investigators: This is what I want to happen. In the end, whatever Trump does, he will not get his way. Even if he were to fire Bob Mueller, the various investigations and prosecutions now reside in too many hands and too many locales to be contained. But that’s beside the point. The president is doing exactly the thing a president is not supposed to do. There are no shades of gray here. The president is trying to destroy what Americans have long assumed about who we are and how the justice system works. He is doing two kinds of damage. There’s the head-on-collision damage: the “phony Witch Hunt,” “FBI corruption,” in-your-face insult damage. And there’s the much more insidious damage that results from remarks like the ones he made before Manafort’s hearing. They continually lower the bar on presidential conduct, now and for the future.