It was a big day on Capitol Hill. Former FBI Director James Comey’s testimony is currently hanging over our nation’s capital, but today brought heavy hitters to the table as well. The Senate Intelligence Committee questioned the acting director of the FBI, Andrew McCabe, Director of National Intelligence Dan Coats, Deputy Attorney General Rod Rosenstein and the Director of the NSA, Mike Rogers. Before we get into what happened, watch this video, as it serves as the subtext for everything that occurred in front of the committee.
These four men were called to testify on section 702 of FISA, and I will not be covering that here, as I do not have the legal bona fides to speak with any authority on a wildly complex and intricate law involving a secret court. I have exempted almost all of the testimony on that subject, and I recommend keeping an eye out for anything that Marcy Wheeler or Julian Sanchez write about this issue. I am here to cover the line of questioning into the active investigation of Russian interference in the 2016 election.
Last night brought bombshells from both The Washington Post and New York Times that Donald Trump not only asked James Comey to squash the FBI probe into Michael Flynn, but also asked the same of Director Coats and Admiral Rogers as well. For reasons that should be obvious, many members of the panel, particularly Democrats, wanted Coats and Rogers to confirm or deny these reports.
Democratic Senator Mark Warner from Virginia, who co-chairs the committee with Republican Senator Richard Burr, began this line of questioning by asking if they felt pressured to squash the investigation. That word is incredibly important because it is wildly different to being pressured, and it allowed them to slip out of this line of questioning. Mike Rogers replied:
“I am not gonna talk about theoreticals. I will not discuss the specifics of any interactions I had with the president…I have never been directed to do anything I believe to be illegal, immoral, or inappropriate. I do not recall feeling pressured to do so.”
Warner continued to pressure Rogers, yet the head of the NSA simply replied each time with “I stand by the comments that I have made to you today sir.” Warner then turned to Coats on this topic, who said “I do not feel it's appropriate in a public session [to talk about] confidential conversations between the president and myself, I don't feel it's appropriate to address that in a public session.”
Warner scolded them for their non-answers to unclassified information, and Coats interrupted him, saying “I don't think this is the appropriate venue to do this in. I have never been pressured, I have never felt pressure to intervene in any way with shaping intelligence in a political way.” Again, felt pressure is a central part of this flawed question. Contrary to the reports that you will undoubtedly see on Fox News and the like, our intelligence chiefs did not deny that Trump intervened in the investigation, simply that they did not feel compelled to change their behavior.
Democratic Senator Dianne Feinstein from Missouri was up next, and her questions pertained to the tactic of unmasking Americans caught up in foreign surveillance. Michael Flynn is the backdrop to this entire exchange.
Paraphrasing Mike Rogers' response, Rogers said that there were 20 individuals in 12 different positions who can unmask an American in intercepted communications. The NSA must outline in writing the criteria that will be applied in the request to unmask, and in their reports, they do not reference a name (so in Michael Flynn's case, he was initially labeled as “U.S. Person 1, 2, etc…”). Rogers said that some of the recipients in such an investigation will eventually come back and say “I am trying to understand what I am reading, who is person 1, etc…”
Their request must be in writing AND the request must be made in related to the basis of their official duties. Rogers clarified that it “cannot be made because you're just curious” and that it “must tangibly apply to your job…The basis of the request must be that you need this identity to understand the intelligence you're reading…If we unmask, we go back to the entity that requested it, not every individual…and we remind them the classification of this report and the sensitivity of their identity remains in place.”
So basically, the methodology that Rogers was explaining means that either:
1. It was nearly impossible for Flynn's unmasking to be politically motivated.
2. If it somehow was politically motivated, there is a paper trail.
Next up was Republican Senator from Florida, Marco Rubio, and he asked the question that Mark Warner should have posed: are you prepared to say you have never been asked by the White House to influence an investigation?
Coats responded: “What I'm not willing to do is to share confidential information that ought to be protected in an open hearing…I am just not going to go down that road in a public forum.” Rogers said that he “stand[s] by my previous statement.”
Rubio more bluntly followed up, essentially asking if anyone asked the intel chiefs of methods used to mess with an investigation. Coats, Rogers, and Rosenstein all said no, but that they were confused by the question because it wasn't clear which news report about Trump's interference that Rubio was referencing. That moment of clarity was obscured by the scope of this giant Trumpsterfuck, which was then compounded by Rubio's time running out, and we were unable to get a clear answer on this question.
Senator Ron Wyden from Oregon followed, and he was particularly combative with these four men. His opening question was almost certainly geared towards getting them on record confirming the existence of something the Senate could subpoena, asking “did any of you four write memos, take notes, or otherwise record yours or anyone else's interactions related to the president with the Russia investigation?”
[paraphrasing their very curt answers]
Coats: I don't take any notes.
Rosenstein: I rarely take notes, but I am not going to answer questions regarding the Russia investigation.
McCabe: I also am not going to comment.
Wyden then asked about the WaPo report that DNI Coats was asked to intervene in the Russia investigation. Coats had said this did not happen prior to WaPo's latest story, and then Coats said that he wasn't going to comment in an open hearing. Wyden fretted that both couldn't be true as his time ran out.
The Republican Senator from Maine, Susan Collins, asked about the White House invoking executive privilege. She received a bit of a confused answer (more on that shortly), the Democratic Senator from New Mexico, Martin Heinrich, stepped up and went after McCabe—probing his conversations with former director Comey, and whether Comey confided in him about his conversations with Trump. McCabe said that he wouldn't comment on his conversations with Comey. When asked why not by Heinrich, McCabe basically started filibustering, and hinted that it's an ongoing investigation and that it wouldn't be appropriate to comment.
Heinrich then asked Coats whether the reported conversation in WaPo occurred with Trump, and Coats responded yet again that it's inappropriate to discuss in an open session. Then Heinrich attempted to create a moment for the cameras.
Heinrich: “You realize how simple it would be to say, 'no that never happened.' Why is it inappropriate?”
Coats: “I think conversations between the president and myself are for the most part confidential.”
Heinrich: “You seem to apply that selectively.”
Coats: “No I'm not applying it selectively, I do not share with the general public, conversations I have with the president or many conversations I have with my colleagues.”
Heinrich then asked Rosenstein about the Comey memo, and whether he knew that the administration would use it as justification for Comey's dismissal. Rosenstein launched into a long filibuster about how all of his briefings on the matter are in the public record and generally avoided the question, then referenced the questions he answered in the closed briefings. Then, what I believe to be a very important exchange took place (I will explain why at the end of this summary).
Heinrich: “In light of Mister Sessions' recusal, what role did the AG play in that firing?”
McCabe: “I am not going to comment on that matter, I am going to leave it to special counsel Mueller to determine whether it's in the scope of this investigation.”
The Republican Senator from Missouri, Roy Blunt, then tried to help President Trump, asking director McCabe: “You said no effort was made to impede the Russian investigation in the past, is that true?”
McCabe said no, but what Blunt was referencing was a question as to whether the firing of Comey impeded that investigation, which is still no. McCabe's point was that the FBI had not asked for additional resources—which was true then and still is today. Next up brought the exchange of the day, as the Independent Senator from Maine, Angus King, got all hot and bothered, and didn't take “no answer” for an answer.
King asked about McCabe's refusal to answer the question, and McCabe replied that he needed to be “careful about stepping into the Special Counsel's lane.” King then shot back with a very important question: why does the special counsel get preferential treatment over the Senate oversight committee? King wanted a legal rationale behind this, because he was puzzled as to how a Special Counsel takes precedent over the committee appointed to oversee this entire ordeal, and McCabe still didn't give him a straight answer.
King then asked the same question to Coats and Rogers, and followed up by asking if there was an invocation of executive privilege by the president, lamenting that “I feel [deference to the special counsel over the Senate] is inappropriate.” Rogers spoke about classified conversations and King interjected “what is classified about this comment?” Rogers again sidestepped the question.
King then asked the same questions to Coats, saying “what's the basis of your refusal?” He kept prodding for a legal basis, and in a moment of clarity, Coats responded that “I'm not sure I have a legal basis.” Coats then said that he wanted a closed session to fully answer this question. King shot back, saying “it is my belief that you are inappropriately answering these questions here today.” As to the topic of executive privilege surrounding these discussions between intel chiefs and Trump (meaning the White House essentially gets to impose a blackout on a line of questioning), I will leave it to Marcy Wheeler to contextualize that part of the exchange.
The Democratic Senator from West Virginia, Joe Manchin, was up next and asked whether these four men would give answers in a classified intel setting, specifically asking “would you answer differently?”
Coats and Rogers immediately responded yes. Rosenstein basically replied that Special Counsel Mueller has jurisdiction on this issue, so he would need to coordinate with him on where the FBI's existing probe would overlap with Mueller's new investigation. McCabe agreed that Mueller would need to advise the Senate on where their questions would be directed towards.
Next up was the Democratic Senator from California, Kamala Harris, who asked if Rosenstein will allow Mueller to be independent. She essentially was trying to get him to commit to not firing the special counsel, and Rosenstein—a lawyer—gave a very lawyerly answer. Harris began badgering Rosenstein and talking over him as he tried to answer. Chairman Burr then interrupted and basically told her to shut up and let Rosenstein respond. I'm already seeing some people claim sexism on this, and with any male senator, that certainly is a possibility, but she was legitimately being unruly. Rosenstein was not able to answer over her grandstanding, and her response as to why she was doing what she was doing was that Rosenstein had made a joke earlier about filibustering (it was actually a fellow Senator who joked that Rosenstein filibusters better than their colleagues).
After finally gaining the floor, Rosenstein says that yes, theoretically, anyone can be fired, but if they do, the Department of Justice must file a report as to why to Congress. He basically said that Mueller does not have ultimate independence like the Attorney General would, but that there are checks in place to prevent any nefarious business.
The last Democratic questions on the Russian investigation from a came from Jack Reed of Rhode Island, and I believe that this revealed the most important answer of the day on this topic. Reed asked some more delicate questions about why McCabe would not comment on Comey's conversations with the president.
McCabe: “It's important to note that Mr. Mueller and his team are still in the process of determining what that scope is…It's somewhat of a challenge at the moment.”
Reed followed up, floating the idea that these conversations that they have all refused to comment on are part of or are likely to be part of a criminal investigation. He asked acting FBI Director McCabe, “is that accurate?”
McCabe responded, “That's accurate sir.”
Mark Warner then closed the panel, saying that “I come out of this hearing with more questions than when I went in.” I understand his frustration, but I think that it stems from wanting too much to come from this ordeal. There is a very clear and useful pattern that emerged from this hearing. The men leading the Russian investigation at the FBI, Department of Justice, DNI and NSA all emerged with the same answer: they will not comment on unclassified information pertaining to an ongoing investigation. Legally, it doesn't make sense to say you cannot comment on unclassified information, so I believe that you can look at this non-testimony and come to one of two obvious conclusions. Here's one, which I think is fucking insane.
So in less than five months on the job, Donald Trump already has the FBI, DOJ, NSA and DNI pledging fealty to him over their sworn oaths to uphold the Constitution? That’s crazier than anything Louise Mensch has written. I believe the other, more logical explanation, is hidden in two of acting FBI Director McCabe’s answers.
1. Responding to a question about Sessions’ role in Comey’s firing: “I am going to leave it to special counsel Mueller to determine whether it’s in the scope of this investigation.”
2. Affirming Jack Reed’s theory that these conversations are part of or may be part of an ongoing criminal investigation.
Let’s circle back to former director of DNI James Clapper’s “this is bigger than Watergate” quote at the very top of this story and address what we know to be a fact.
— The FBI has an active investigation into team Trump’s ties to Russia.
— Trump asked the Director of the FBI to not investigate one of the main players in this investigation, Michael Flynn.
— Trump then fired the Director of the FBI.
— Trump admitted to both the Russians (which the White House confirmed to be true) and to Lester Holt of NBC, that the “Russia thing is a fake story” and it played a role in Comey’s firing.
So, if the newest reports are true that Trump also asked the NSA and DNI to downplay or squash the Russian investigation, how could those conversations not be a core part of the broader probe? Robert Mueller’s jurisdiction is basically President Trump, and given how early it is in this special investigation (it was created only three weeks ago), it is very reasonable to expect that the FBI does not know where their jurisdiction ends and Mueller’s begins just yet. These non-answers to whether these conversations took place, combined with McCabe’s admission that they are or could be subject to a criminal investigation, are a bad look for President Trump—not one proving collusion between him and our intel chiefs. These conversations are not classified, but an ongoing investigation into why those conversations took place may be, and McCabe basically said that is a strong possibility.
People need to cool their jets. This is not Law & Order, where a big dramatic reveal is going to take place in the space of one day. Plus, if you’re shocked that spies wouldn’t want to talk about what they know in an open hearing, I have some swampland I’d like to sell you. Tomorrow, James Comey will not say that Trump obstructed justice, but will shed additional light on confirmed reports of his interactions with the president. What we already know about those interactions looks to be obstruction of justice, so why wouldn’t that be investigated? It is far too early to glean any absolute information from this hearing, but it is very clear that Trump’s behavior is part of an ongoing probe, and that is responsible for the dodgy answers on Capitol Hill today. Pace yourself folks, we’ve got a long way to go on this saga.
Jacob Weindling is a staff writer for Paste politics. Follow him on Twitter at @Jakeweindling.