Time to cut the leaks
Where the answer is always the question, cui bono?
Two days after a detail-laden Washington Post article describing the discussion and dissent within DOJ and the FBI about the investigative path looking into classified documents at Mar-a-Lago, the prevailing summary appears to have boiled down to this: over a period of months, DOJ found themselves battling an FBI reluctant to aggressively pursue logical investigation, culminating after several months last summer in (using the later words of one of the article’s authors) a “knock-down drag-out” fight about whether to seek a search warrant for the former President’s residence at Mar-a-Lago.
But a careful reading of the Post’s reporting (insofar as the reporting is complete) reveals this was not so much a conflict between DOJ and the FBI as much as a conflict between DOJ and FBI headquarters, on the one hand, and the management of the FBI’s Washington Field Office, on the other. [Full disclosure, I worked with several of the prosecutors and agents described in the article] This post is going to do such a close reading, so get ready for – or prepare to skip the bulk of this post about – some forensic disassembly of the Post article.
First, it’s important to frame the issue of why the debate in the article is notable. Before we do that, there is one very significant caveat to carry throughout this post: whether you’re a journalist or an investigator, sources’ memories can be faulty, and even journalists can be imprecise or inaccurate. The Post’s article isn’t, for example, the type of comprehensive accounting you’d get in a report produced by an Inspector General, who can compile the statements of everyone involved and review and compare those statements to the written record in all its various forms. And it’s almost certain that every participant in the described events did not provide their version of what happened to the Post.
Why are mom and dad always fighting?
Turning to the conflict described in the article, day-to-day disagreement between prosecutors and special agents is not unusual – far from it, it’s a characteristic of a healthy investigative relationship. I routinely had robust disagreement and debate with prosecutors about the investigative path of cases, including with two of the DOJ personnel named in the Post article. On occasion in those meetings – and what happened in an August 2022 meeting described in the article – “tempers ran high.”
Although a bit of a stereotype, agents tend to be aggressive and impatient, wanting to get as much information as quickly as possible to move the case forward. Prosecutors want the same, but focus on a different and complementary set of considerations: the how of obtaining legal process (e.g., are there sufficient facts to demonstrate probable cause to a judge to obtain a search warrant), issues of privilege (e.g., are there attorneys, members of the media, or other entities which bring additional regulations into play), the balance between seeking consent rather than executing a search warrant (e.g., might consent allow a broader scope of access than that which could be obtained via a warrant), and much more.
What is unusual about the episode described in the Post is the roles were flipped: DOJ pulled reluctant investigators along, potentially delaying the recovery of highly classified materials by months. And by unusual, I mean close to unprecedented. As I tweeted, in 20 years of working cases involving classified information, I never – not once – encountered prosecutors who wanted to get a search warrant and reluctant – even refusing! – agents.
One of the things that bothers me the most is an apparent lack of investigative skepticism and curiosity. There is a very reasonable point that any investigation involving a high level official has unique considerations; investigating without fear or favor doesn’t mean the context is the same. In this case, given an investigation of events involving a former president, it’s prudent to give additional consideration to the investigative plan. But additional consideration doesn’t mean ending an investigation based on a caveat-laden attestation that no classified material remained, written and signed by the attorneys of a man who had spent more than a year delaying and avoiding returning classified material to the government. It doesn’t mean avoiding taking investigative steps, such obtaining and reviewing CCTV coverage of Mar-a-Lago – especially when that CCTV footage ultimately revealed behavior at odds with the attestation and apparently provided significant facts to support probable cause to obtain a search warrant.
Consider the FBI’s investigation, one that I was involved with, involving another high-level individual – not a president, but close: Hillary Clinton, the Democratic nominee for president in 2016. Throughout the investigation, Clinton’s camp was cooperative, voluntarily turning over and consenting to searches of emails and other records in various forms. In that investigation, the pattern of aggressive agents working with measured prosecutors held true: a DOJ IG report about the case noted the process of obtaining evidence was sometimes slow, leading to occasional, healthy, conflict between agents and prosecutors, where prosecutors argued to continue negotiating for consent while agents pressed to stop the talks and seek a search warrant instead.
Further, the Clinton camp’s assertion that everything had been turned over wasn’t enough to satisfy investigators. Despite the marked difference between the rapidity and completeness of Clinton’s cooperation – a few months to voluntarily turn over material in her possession, compared to more than a year of foot-dragging non-compliance on Trump’s part – that cooperation alone wasn’t enough to satisfy investigators. Investigators didn’t take Clinton’s word that she had turned over everything and shut down the case in the fall of 2015. The FBI continued to search for email servers, for backups of those servers at server farms and other remote locations, for laptops used to sort her email, and went across the wide span of the government to other agencies to recover every email we could from other parties. That any investigator would want to continue playing cooperatively with a demonstrably recalcitrant and allegedly criminally obstructive party, doesn’t make sense to me.
Although that statement isn’t true. It does make sense to me. The explanation comes from what I find to be the most remarkable, unsurprising, and disappointing detail in the entire article:
“But the prosecutors learned FBI agents were still loath to conduct a surprise search. They also heard from top FBI officials that some agents were simply afraid: They worried taking aggressive steps investigating Trump could blemish or even end their careers, according to some people with knowledge of the discussions. One official dubbed it ‘the hangover of Crossfire Hurricane,’ a reference to the FBI investigation of Russia’s interference in the 2016 presidential election and possible connections to the Trump campaign, the people said. As president, Trump repeatedly targeted some FBI officials involved in the Russia case.”
This was the goal of Trump, Barr, Durham, and others. Target anything the FBI did to investigate anything relating to Trump. Create sufficient personal and institutional fear to cause inaction. It succeeded.
Beyond the unusual facts in the article, there is the equally unusual fact of the article. As pointed out by former national security prosecutor Brandon Van Grack, it’s highly unusual for details of this debate to leak out while the case is still pending.
While I disagree with Van Grack that this is the most troubling aspect of the story (to me, the just-described point that “agents were simply afraid” to investigate Trump carries that honor), it is unusual. Much like the unique nature of the roles being flipped, I cannot remember a similar leak, mid-investigation, of such inside baseball information. And it raises a critical question: why this leak, now? Who is harmed? And who benefits, or avoids harm?
Making sausage
To address that question, we need to dive into the article a little bit, which turns out to be a bit of an art form. If you’d rather not do that and want to skip ahead to the Who Benefits? section, that makes complete sense.
In a course I teach at Georgetown University, we spend one class looking at the intersection of media and national security – how the media covers national security investigations, how the government handles those people who inevitably leak information to the media in some of their coverage, and how both entities view their obligations to the public and the national security of the U.S.. There’s a not-so-apparent method and code to how national media coverage of national security investigations works, and it just so happens
wrote an invaluable introduction to the process – it’s assigned reading in my class, and I encourage you to take a look before continuing.With Ben’s guidance in mind, let’s take a closer look at this Post piece. The first point is the byline is fairly large: Carol Leonnig, a veteran investigative reporter covering the White House and government accountability; Devlin Barrett, a reporter focusing on national security and law enforcement, including the FBI for many years; Perry Stein, a reporter covering the Justice Department; and Aaron Davis, an investigative reporter. Spencer Hsu, another investigative reporter, while not on the byline, appears at the end of the article as contributing to the article. Looking at the past articles of each reporter can give you a sense of the nuance of the perspectives their sources tend to advance within their respective agencies. Do their sources tend to be high ranking or low ranking? At headquarters or in the field? Conservative or liberal? As a side note, if you’re particularly interested in a report, monitor the version changes – in the case of this article, the original was posted on March 1st at 6:00 AM. It was revised at least once, at 2:46 PM. Updates typically contain things like comments from the parties identified within the article, but updates which change things like the characterization of, or information from, sources can be especially interesting.
Some of the most compelling passages are the actual words of the parties involved in the description of the debate between the FBI and DOJ in a meeting at the FBI “about a week before” the Mar-a-Lago search on August 8, 2022. The article identifies by name several DOJ and FBI officials attending the meeting: from DOJ, Assistant Attorney General Matt Olsen, and DOJ National Security Division attorneys George Toscas and Jay Bratt; from the FBI, Steve D’Antuono, then the head of the FBI’s Washington Field Office (WFO), Alan Kohler, head of the FBI’s Counterintelligence Division, and Jason Jones, the FBI’s general counsel. One more official – not at the meeting – is named: Paul Abbate, the FBI’s Deputy Director.
The article identifies several statements made by the participants, including three direct quotes (italicized below), all of which were made by or to D’Antuono. Note how the various source information in the article frames each individual:
D’Antuono was “adamant the FBI not do a surprise search,” including a source-disputed assertion that “he would agree to lead such a raid only if he were ordered to.” He “repeatedly urged the FBI seek to persuade Trump attorney Evan Corcoran to agree to a consensual search of the property.” Some but not all of the Post’s sources noted he “complained how bad it would look for agents with ‘FBI’ emblazoned on their jackets to invade a former president’s home.” D’Antuono allegedly questioned why the scope of the search would include presidential records in addition to classified material, with a direct quote attributed to him that, “We are not the presidential records police.” After Toscas allegedly told him that despite his own initial reservations, he, too, was “swayed” by the evidence, D’Antuono allegedly stated, “George, that’s great, but you haven’t swayed me.” Finally, the article notes in response to Jones’ indication that he planned to recommend to Abbate the FBI seek a search warrant, D’Antuono stated the he would recommend that they not.
Bratt “raised his voice at times and stressed to the FBI agents that the time for trusting Trump and his lawyer was over,” according to some but not all of the sources. When D’Antuono asked whether Trump was officially the subject of the criminal investigation, Bratt reportedly stated, “What does that matter?,” expanding that “the most important fact was that highly sensitive government records probably remained at Mar-a-Lago and could be destroyed or spirited away if the FBI did not recover them soon.”
Toscas was viewed by some attendees as a DOJ “veteran who had worked with the FBI through the Crossfire Hurricane and Clinton email investigations as a prosecutor whose words would carry special weight with the FBI agents,” though he was not able to change D’Antuono’s mind.
Jones, “considered a confidant of FBI Director Christopher A. Wray, agreed the team had sufficient probable cause to justify a search warrant” and that “he planned to recommend to Deputy FBI Director Paul Abbate that the FBI seek a warrant for the search.”
Kohler pushed back on D’Antuono’s concerns about the appearance of a search, asking “the senior agents [plural – and an odd formulation, given Kohler himself is a senior agent] to consider how bad it would look if the FBI chose not to act and government secrets were hidden at Mar-a-Lago.”
No statements or opinions are attributed to Olsen, although the article notes at some point after the meeting, he “appealed to senior officials at FBI headquarters to push their agents to conduct the raid,” and that “a day later” Abbate directed WFO to conduct the search. While there is a temporally indistinct mention in the middle of the discussion of the meeting that “FBI agents on the case worried the prosecutors were being overly aggressive,” it is not clear who else, if anyone, was present at the meeting, including case agents from WFO or lower ranking program managers at FBIHQ.
Let’s turn to the sources in the article. Right off the bat in the first paragraph, the article tells us there are “four people familiar with the discussions.” So that’s the stated universe: four sources. In my experience, as far as internal FBI and DOJ discussions go, that’s a lot. I remember being irritated when one or two sources might leak. But four? A notably high and unusual number. It suggests to me that for whatever reason, 1) people felt it exceptionally important to get this narrative out to the public, and 2) they had the blessing of their superiors to do so. It’s very important to note that the senior-most leaders of both DOJ and the FBI have the authority to allow people to discuss various organizational matters with the media - and if any of these sources were speaking with the Post under such authority, as I believe at least the “senior law enforcement official” described below was, then those were authorized disclosures, not leaks.
“People familiar with” does not mean “people engaged in” – although it might. “People familiar with” doesn’t even mean “people in the government” – although it might. At this point, as far as internal DOJ-FBI discussions go (by this, I mean discussions not including people like defense counsel, or things memorialized in material briefed to outside entities like Congress or turned over in discovery), it could mean anything from:
a government employee engaged in the events described in the article;
a government employee informed about the work (someone like an employee of an Office of Public Affairs) described in the article;
an attorney for a government employee engaged in the events described in the article;
a friend or surrogate of a government employee described in the article, or;
a third party who overhead or was told information by anyone in 1) - 4)
From the article, we know some more about the four sources. At least one of them is “a senior law enforcement official” – someone who defended FBI leadership, saying words to the effect of, the “idea of closing the probe was not something that was discussed or considered by FBI leadership and would not have been approved.” A “law enforcement official” could be from either the FBI or DOJ, however, given they’re defending the FBI – particularly, FBI Headquarters – it’s a reasonable guess they’re FBI.
We know a bit more about probably the same source. In a discussion on MSNBC’s Deadline White House later on March 1st, Leonnig noted,
“I think it’s safest for me to say that the effort to, or rather, the discussion and proposal, informal proposal to close down the case in June was at the Washington Field Office among line agents, people who were responsible for this work. And the FBI Headquarters, as alleged by a senior official who we interviewed about this, said FBI Headquarters did not know that this discussion was going on and they insist that they would not have approved it…we’ve had many people say, you know, this would not have been approved by the senior leadership of the FBI.” My guess is the “senior law enforcement” official described in the article is the same “senior official” she described here, and it appears to have been in the context of a formal, sanctioned, “interview,” not a casual conversation with a source who wasn’t supposed to have been talking about it. Leonnig also notes at the end that they “had many people say” it would not have been approved. That’s harder to pin down. FBI officials might have said that. DOJ officials might have said that. Former FBI officials might have said that. But for this particular point, it’s a consistent message – and one very much intended to defend FBIHQ’s decision making.
Leonnig says – or rather, doesn’t say – one little bit more about their sources. When Deadline host Nicolle Wallace asked Leonnig if she knew whether the WFO field agents who wanted to close the investigation were “still on the case,” Leonnig responded, “I can’t answer that at this moment, I’m sorry.” She didn’t respond that she didn’t know, and she didn’t respond with the public information that D’Antuono retired from the FBI in early December, 2022. One interpretation of Leonnig’s non-response is that the Post has some visibility into WFO personnel below D’Antuono working on the case – but even if they do, it doesn’t necessarily imply they are sources.
We also know the four sources disagreed at times (“[w]hile the people who described these sensitive discussions disagreed on some particulars, they agreed on many aspects of the dispute”):
Whether the investigation was delayed as a result of the disagreement (“Some inside the probe argued the infighting delayed the search by months, ultimately reducing the time prosecutors had to reach a decision on possible charges. Others contend the discussions were necessary to ensure the investigation proceeded on the surest footing, enabling officials to gather more evidence before they executed the search”)
Whether or not D’Antuono, the head of the FBI’s Washington Field Office (WFO), refused to conduct the search (“D’Antuono said he would agree to lead such a raid only if he were ordered to, according to two of the people. The two other people said D’Antuono did not refuse to do the search but argued that it should be a consensual search agreed to by Trump’s legal team.”)
While not a disagreement, three of the four sources were in a position to confirm prosecutors were hearing about discontent from WFO after the decision was made to conduct the search (“Prosecutors remained somewhat on guard until the day of the raid, as they continued to hear rumblings of dissent from the Washington field office, according to three people familiar with the case.”)
Who benefits?
I have a hard time figuring out why this piece came out now, and speculation about the motivations of those behind leaking it is just that – speculation. It certainly presents DOJ and some senior leaders at FBIHQ in a generally favorable light. I don’t see the opposing folks, those who preached caution and cooperation with Trump and argued against getting a warrant, leaking facts which undermine their position, unless they continue to think obtaining a search warrant was the wrong decision. And if they think that, given the alleged obstruction, all the classified information that was found during the search, and then found again, and then found yet again, I have real questions about their judgment.
Similarly, I don’t see those who were vindicated in seeking a warrant gaining anything by leaking the details of that debate. The record is already on their side. People in Special Counsel Jack Smith’s office don’t appear to have motivation to do so – it simply adds an avenue of attack for any potential defense attorney. If an IG report or some other Congressional oversight disclosure was imminent, I could see various parties trying to shape the narrative to get ahead of that. But this is a pending criminal case, where any such administrative reviews and disclosures will be deferred until criminal proceedings are complete.
Josh Hawley certainly made use of the article in a hearing with AG Garland the same day the article was published, mischaracterizing the content of the article as part of his general harassment of Garland (according to Hawley, field agents wanted to close the case “but they were overruled by main DOJ,” whereas the article clearly notes that decision was made by the FBI’s Deputy Director, not DOJ).
So I don’t see a very clear motive. If I had to guess (and speculation is generally a poor idea but you’ve made it this far through a very long post), someone in the FBI who disagreed with the investigative decisions in the Mar-a-Lago investigation was grumbling about it enough that one of the Post reporters, particularly one of those who might have picked up pro-Trump FBI grumbling in the past, heard about it. Then, as the Post pursued the story and asked press offices for comment, big organizational-level FBI and DOJ said wait a minute, that’s not accurate, we need to defend our senior leaders and organizations, and this is important enough that we’re going to go so far as to give you someone to interview to set the story straight before you publish. The Post picks up another couple of corroborating witnesses along the way, and we end up with a mid-investigation article about internal deliberations better left to a complete, after-the-fact IG review. Wouldn’t be the first time this sort of fact pattern occurred, nor would it be the first time for some of these particular reporters.
To the extent the article presents a reality of agents afraid to investigate Trump, that’s pretty abysmal commentary about the leadership failure to provide political cover for agents to do their jobs when it comes to politically charged matters in general, and Trump in particular. But if the article brings attention to fixing that issue, perhaps there can be a silver lining to all of this.
Neither Max nor Cloudy care for leeks. Or leaks.
Really, really interesting to see how your thought processes turn. This is excellent. Thank you.
Excellent work like this is a good reason to sign up for a paid account. We need this voice in the national conversation.