FBI's collusion claims based on 'statutory relic'

[Editor's note: This story originally was published by Real Clear Investigations.]

By Paul Sperry
Real Clear Investigations

Newly released documents reveal the FBI never had even preliminary evidence of a Trump campaign conspiracy with Russia, and instead used a rarely enforced statutory relic – the Foreign Agents Registration Act – as the legal rationale for opening investigations in 2016-2017 and surveilling Trump campaign aides.

On July 31, 2016, the FBI opened a counterintelligence probe of the Trump campaign’s alleged ties with Russia – nicknamed Crossfire Hurricane – not under espionage conspiracy laws but under FARA.

The next month the FBI opened four separate FARA cases into people associated with the Trump campaign. Two other FARA cases were added the next year. Only one involved an individual with connections to Russia: Carter Page.

The recently disclosed documents, which surfaced thanks to declassification efforts, court filings and FOIA lawsuits, reveal that the initial target of the probe – then-Trump foreign policy adviser George Papadopoulos -- was suspected of working for Israel, not Russia. Other FARA cases involved alleged ties to Turkey (Trump national security adviser Michael Flynn), Ukraine (campaign manager Paul Manafort and his deputy Rick Gates) and Egypt (Trump Mideast adviser Walid Phares).

All six sensitive cases were approved through the Justice Department’s counterintelligence and export control section, run at the time by former Justice official David Laufman.

Before the flurry of Trump-related cases, only three people had been found guilty of violating the seldom-enforced law since 1966. Passed in the run-up to World War II to curb Nazi propaganda, FARA mainly requires people to fill out a two-page form disclosing work on behalf of a foreign entity.

Nevertheless, the FBI used FARA as the basis for a wide-ranging probe of a presidential campaign and then a presidency that included the use of confidential sources to secretly record Trump’s advisers, according to a December report by the Justice Department’s watchdog. At the same time, the FBI dispatched agents to tail them, stake out their homes and dig through their trash — none of which is typically ordered in FARA probes, which rarely even result in fines.

As has been widely reported, Obama administration officials also resurrected an even older and less frequently used law, the Logan Act of 1799, to raise questions about Flynn’s contacts with Russia’s ambassador to Washington during the transition to the Trump administration. Only two people have ever been charged under the statute barring unauthorized citizen dealings with foreign governments – both before the Civil War. Neither was convicted.

Investigators for the Republican-led Senate looking into the conduct of the FBI and Special Counsel Robert Mueller’s team told RealClearInvestigations they believe the FBI and, later, Mueller used FARA as pretext to authorize investigations into individuals against whom there was no other significant evidence, raising fresh concerns about the predication for the nearly three-year investigation of Trump. Mueller also used the threat of FARA prosecutions to squeeze individuals for Russia information.

Only one of the six was indicted for FARA-related violations, and none was charged with any espionage or conspiracy crimes related to Russia.

In April 2019, Mueller reported that his “investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in election interference activities.”

Former FBI Director James Comey and his deputy Andrew McCabe have publicly testified they had sufficient evidence to justify investigating the Trump campaign for coordinating with Moscow to hack Clinton campaign emails and troll social media to influence the 2016 presidential  election — a scheme that, if true, would have violated espionage laws and warranted serious felony charges.

But the raft of new documents reveals that the actual basis for the cases was the suspicion that Trump campaign aides failed to file FARA forms with Washington bureaucrats and pay the required $305 in registration fees.

One Senate investigator told RealClearInvestigations that Laufman, then Justice’s top counterintelligence official, was the “mastermind” behind the strategy to dust off and “weaponize” FARA against Trump campaign officials.

Investigators for at least one committee seek to question Laufman under oath. His name appears on a subpoena list of witnesses approved by the GOP-led Senate Judiciary Committee.

Laufman signed off on the wiretapping of Trump campaign adviser Page, which the Department of Justice inspector general determined was conducted under false pretenses involving doctored email, suppression of exculpatory evidence, and other malfeasance.

An Obama campaign donor, Laufman helped oversee a wide range of politically charged cases as the DoJ’s counterintelligence section chief – including the department’s investigation of Hillary Clinton concerning her mishandling of classified emails as secretary of state.

He could not be reached for comment. Since leaving the government for private practice in 2018, Laufman has made several appearances on cable TV shows criticizing the Trump administration. Last year he boasted of his “more aggressive approach” to enforcing FARA in a legal white paper.

“There have been nearly as many criminal prosecutions for FARA violations in the last 18 months (five) as during the 40-year period from 1966 to 2015 (seven),” he gloated in the February 2019 paper on “FARA Enforcement."

The FBI and Justice declined comment.

Before advising Mueller, the inspector general’s report revealed that Laufman worked closely with FBI counterintelligence official Peter Strzok – who was fired from the bureau in 2018 because of anti-Trump text messages sent while he was investigating the candidate and then president.

When the FBI initially launched its Russia “collusion” investigation of the Trump camp on July 31, 2016, the opening case memo written by Strzok stated that "this investigation is being opened to determine whether individual(s) associated with the Trump campaign are witting of and/or coordinating activities with the government of Russia.”

However, the FBI assigned the investigation a case number used internally by the bureau for possible violations of FARA. That means even the FBI’s larger umbrella case was at its core a regulatory, not a national security, matter.

The revelation is contained in a redacted version of the Electronic Communication obtained last month by Judicial Watch as part of a FOIA lawsuit the Washington watchdog group filed against the FBI.

“It shows there was no serious basis for the Obama administration to launch an unprecedented spy operation on the Trump campaign," Judicial Watch President Tom Fitton said. “We now have more proof that Crossfire Hurricane was a scam.”

In August 2016, Laufman began huddling with Strzok about the Crossfire Hurricane investigation, according to the IG report, getting regular briefings on all the Trump-related cases that flowed from it.

On Aug. 10, 2016, they opened separate FARA cases on Page, Manafort and Papadopoulos, under code names assigned by the FBI. The Papadopoulos case, for instance, was code-named "Crossfire Typhoon.” Then on Aug. 16, they opened another FARA case on Flynn, under the code name, “Crossfire Razor.”

Documents indicate they strained to convert FARA cases into counterintelligence investigations. Even though the cases were predicated on possible FARA violations, the Electronic  Communications stated that there was reason to believe that the Trump targets “may wittingly or unwittingly” be involved in activity on behalf of Russia, which may constitute a federal crime or threat to national security.

The targets are not specifically named as "agents of a foreign power” — the key language in the federal espionage statute (under 50 U.S.C.) making it a crime to knowingly aid or abet any person in sabotage or clandestine intelligence-gathering activities for a foreign power. Rather, the case files cite the “Foreign Agents Registration Act” statute, even though they state that the primary goal of the investigation was to determine whether the targets were “directed and controlled by and/or coordinated activities with the Russian Federation in a manner which is a threat to the national security.”

Mark Wauck, a former FBI attorney who worked counterintelligence cases for the bureau, told RealClearInvestigations that FARA served as a "smokescreen” to justify spying on the Trump campaign and its aides, under the “baseless theory" that they might be clandestine agents of Russia.

Former FBI assistant director of intelligence Kevin Brock is equally skeptical of the motives for opening the cases. He said there was not enough evidence to support the FARA allegations and justify them standing alone as criminal investigations.

“In a normal EC opening a FARA case, we should expect to see a list of reasons why the FBI believes individuals associated with a U.S. presidential campaign had been engaged by the Russian government to represent and advocate that government’s goals,” he said. “Try as we might to spot them, those reasons are not found anywhere in the document.”

Added Brock: “There was no attempt by Strzok to articulate any factors that address the elements of FARA. He couldn’t, because there are none."

While the FBI used FARA to justify the launch of the investigation, Mueller later wielded it to pressure targets. Phares, a Lebanese-born American scholar and commentator who advised the presidential campaign of Mitt Romney in 2012 and Trump in 2016, confirmed in a RealClearInvestigations interview last month that he, too, was targeted under FARA.

Phares said he was interviewed by two Washington agents working for Mueller in 2017. “They were looking for FARA violations,” Phares said. “They couldn’t find anything about Russia, so they started asking me about Egypt,” he told RCI. “It’s laughable.”

Despite rummaging through his bank records, he said, they never filed any charges against him. Phares complained the FBI conducted a fishing expedition. He believes the FBI was also monitoring him during the 2016 campaign.

“But on different grounds,” he noted. “Not on the Russians, because I have no contacts [in] or ties to Russia, but on my work with Egypt.” Their real goal, he contended, was to spy on Trump and his campaign. Some legal experts say the predication for opening a probe of Phares appears thin.

“There is no logical basis for such an investigation,” said Wauck, who has been a persistent critic of the Trump/Russia probe.

Still, Mueller ended up bringing a half dozen indictments using the statute in his campaign to link Trump and his advisers to Russian efforts to influence the 2016 presidential campaign, all of which were approved by Laufman. Laufman helped him build FARA prosecutions against Flynn, Papadopoulos and Manafort, as well as Gates. (It’s not immediately clear if he also was involved in the Phares probe.) The results:

• In September 2018, Manafort pleaded guilty to, among other crimes, violating the Foreign Agents Registration Act, and making false and misleading FARA statements related to consulting work he did in Ukraine. He was sentenced to 43 months in federal prison.
• In February 2018, Gates also was indicted for FARA violations unrelated to the 2016 campaign, but the government dropped the FARA charges against him after he agreed to cooperate against Manafort.
• In November 2017, Mueller used the threat of a FARA prosecution against both Flynn and his son to coerce a false statement plea from Flynn regarding phone conversations he had with the Russian ambassador a few weeks before he took office as Trump’s national security adviser. Flynn in the end was never charged with a FARA violation. Still, Laufman listed the FARA accusation — that he'd also allegedly made “false statements” in his FARA registration involving his work with Turkey — in the “statement of offense” against Flynn, even though it was not part of the plea agreement. (Last month, the Justice Department dropped its case against Flynn, though a federal judge has not yet granted its motion to dismiss the charges.)
• In October 2017, Papadopoulos pleaded guilty to lying to Mueller’s agents after they put the screws to him over possible FARA violations and came up empty on any Russian funny business involving the campaign. Papadopoulos said Mueller threatened to “lock me up” for violating FARA. To get him on a FARA rap, Mueller obtained multiple warrants to search his residence and electronic devices based not on his ties to Russia but to Israel, one of America’s strongest allies.

Papadopoulos said the piling on of charges convinced him to take a plea deal in which he copped to lying to investigators about what turned out to be an innocuous Russia-related conversation he had in London in exchange for minimal jail time.

“I pled guilty when they came after me with FARA violations,” he told RCI.

As with Flynn, the plea bargain allowed Mueller’s prosecutors to insert the word “Russia” in court filings, making it look like he was hiding Russian-related crimes and keeping the Russia “collusion” narrative alive in the media.

Mueller even used the obscure FARA statute to obtain indictments against three Russian companies — as well as 13 Russian nationals — accused of running an influence operation against the 2016 campaign. In February 2018, they were charged with conspiracy to violate the regulation. (Justice recently dropped charges against one of the Russian companies that was a key defendant in the Mueller case.)

Senate investigators say that the unprecedented practice of resurrecting and applying FARA in the Trump-Russia investigation indicated that Mueller and Justice Department holdovers grasped at any conceivable legal tool they could find to pressure Trump associates to cop to what turned out to be nonexistent Russia “collusion" crimes. They also said they intend to question Laufman, in particular, about whether threatening these dubious charges constituted a new and unequal application of the law.

FARA Cases 'Fabricated' as Part of a Political Operation

Richard T. Higgins, a former National Security Council director and Pentagon official, said he doubts that Laufman and other former administration officials ever believed the Trump-Russia conspiracy theory.

Rather, he contends that the FARA and other sub-cases they opened on Trump aides were “fabricated” as part of a political operation against the Trump campaign and presidency. He argued that even the larger umbrella probe was a “cover story” to hide that alleged operation.

“The operation was consolidated and conducted under the codename ‘Crossfire Hurricane.’ The cover story, if one should be needed (in the event Clinton lost), was that its mission was to expose Russian interference in the American election,” said Higgins, who worked in the Trump White House. “The true mission was not to expose Russian interference, but to disrupt the Trump campaign and ensure the election of Hillary Clinton.”

He pointed out that the top Russiagate investigators — Strzok and FBI lawyers Lisa Page and Kevin Clinesmith — were all caught exchanging anti-Trump, pro-Clinton messages during 2016. Before the election, Strzok even promised Page he would “stop” Trump, whom he called a “f------ idiot” supported by “smell[y]" Wal-Mart shoppers. His concern was not that he was an agent supported by Russians, but by supposed rednecks. After the election, Clinesmith feared the Affordable Care Act and other Obama legacies would be dismantled by Trump and vowed to “fight” him for that reason. The IG report said Clinesmith forged email evidence used in applications to renew FISA warrants to spy on Trump aide Page. The IG referred Clinesmith to U.S. prosecutors for possible criminal investigation.

Higgins also noted that most of Mueller’s prosecutors were exposed as registered Democrats, who had given generously to Clinton’s campaign. His legal “pit bull,” Andrew Weissmann, even attended Clinton’s election night event in New York.

“You’d have to be blind not to see it was their political bias that motivated them,” he said.

[Editor's note: This story originally was published by Real Clear Investigations.]

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