RUTHFULLY YOURS

Two influential Judiciary Committee senators have referred Christopher Steele to federal law-enforcement officials for criminal investigation. Steele authored the salacious and unverified anti-Trump dossier commissioned by the Hillary Clinton presidential campaign. The referral was made by Committee Chairman Chuck Grassley (R., Iowa) and Senator Lindsey Graham (R., S.C.), who chairs Judiciary’s Crime and Terrorism Subcommittee. It is set forth in a brief letter written to the leadership of the epartment and the FBI. Appended to the letter is a non-public classified memorandum.

As our David French outlined on Friday, there has been misguided speculation about what the referral means. This includes rabid claims that it is a stunt intended to delegitimize congressional and special-counsel investigations of Russia’s interference in the 2016 election and supposed Trump-campaign collusion therein. At the Washington Examiner, Byron York also had an excellent column over the weekend that did much to clear up the confusion.

Here, in the first of two columns, I address what may be going on regarding representations Steele made to American intelligence officials. In the follow-up, I take up representations those officials made regarding Steele’s dossier.

Let’s start with what a referral is. It’s a request by a peer branch of government that the executive branch conduct a criminal investigation. Lawmakers in their oversight capacity, and judges presiding over legal proceedings, often come across conduct that may violate federal criminal law — particularly, obstructive behavior. Congress and the courts have no power to conduct criminal investigations and prosecutions; in our system, that is solely an executive function. So, members of Congress and judges will refer suspected criminal conduct to the Justice Department and FBI. These referrals are given respectful attention, but they impose no obligation on the executive agencies to investigate.

The referral at issue suggests that Steele may have provided false statements to the FBI — the same violation of section 1001 of the federal penal code to which Michael Flynn and George Papadopoulos have pled guilty in the Mueller investigation. Specifically, the senators cite “statements the Committee has reason to believe Mr. Steele made regarding his distribution of information contained in the dossier.”

Now, as we consider this, let’s bear in mind that we do not know what is in the classified memo that accompanies the letter. We don’t know the substance of the statements to which Grassley and Graham refer. We do not know, for example, whether Steele told the FBI he was not speaking with the media about what he was reporting to the bureau. That assertion, if made, would seem contradicted by the fact that Steele did speak with the media about his reports.

That said, let’s consider the timeline.

Since 2010, Steele, a former British intelligence officer who now runs Orbis Business Intelligence Ltd., a private investigative firm in London, has apparently had a contractual relationship with Fusion GPS, a private U.S.-based research firm. Fusion is run by former Wall Street Journal reporters Glenn Simpson and Peter Fritsch.

According to what Steele has represented to a court in Britain (where he is being sued for libel over the dossier), it was in the context of this longstanding arrangement that Fusion, in the spring of 2016, retained Steele to compile the dossier. Fusion had been commissioned by the Clinton campaign and the Democratic National Committee to produce this anti-Trump opposition research.

As I have recounted (see this column, under the subheading “The Timeline”), Steele began compiling the dossier in June 2016. In late July or early August, he began feeding the FBI the information contained in the reports. Not coincidentally, this occurred shortly after hacked DNC emails began being published on July 22, 2016, just a few days before the Democratic National Convention (which took place July 25–28).

Hypothetically, let’s suppose that, at that early stage, Steele told the FBI that he was not communicating with the media about his reports, and that he had no intention to do so. A few weeks later, in mid September, Steele began briefing Clinton-friendly media outlets at Fusion’s behest. Clearly, a big problem from the standpoint of any potential false-statements case against Steele would be: Unless the FBI had nailed down a non-disclosure agreement with Steele, he would be under no obligation to refrain from disclosing the information to the media just because he had provided it to the bureau.

In our hypothetical, Steele might have been telling the truth when he told the FBI he hadn’t spoken to the media and did not intend to; and he might subsequently have changed his mind, perhaps without telling the FBI so. The latter would be sloppy and maybe even duplicitous, but it would not constitute actionable false statements. Unless Steele flatly and willfully told the FBI something that was false at the time he said it, or made an agreement with the FBI that he violated, there is no section 1001 case.

Again, the senators have seen evidence of what Steele represented to the FBI about his work; we have seen only the dossier, not any exchanges or understandings about its genesis and use.

We should address some apparent misunderstanding about how the FBI works with informants. Most of the time, the bureau receives information from people who (a) volunteer it, (b) are compelled by subpoena to provide it, or (c) are criminal suspects who become informants in exchange for leniency (hoping either not to be charged or to be sentenced lightly). In extraordinary cases involving great potential risk to life or to national security, the FBI pays for information — or at least holds out the possibility of paying for it if the informant satisfies various conditions. In my terrorism prosecution in the 1990s, for example, the main informant who performed undercover work infiltrating the Blind Sheikh’s jihadist cell was paid over $1 million. In another recent terrorism case, involving the Benghazi attack, millions of dollars were reportedly paid to informants.

These arrangements are disfavored because they provide an obvious incentive to lie. But sometimes the compelling need for the information and the impossibility of getting it otherwise make hefty payments necessary — because the security threat the investigation seeks to thwart is immense, and/or the risk to the informant’s life is great. Remember, many times these informants will never again be able to live without fear of reprisals, and their financial prospects are ruined, because of their cooperation. In any event, the idea is that if the informant comes up with high-quality evidence (particularly, video- or audio-recorded evidence) corroborating his incriminating claims, this will overcome the grounds for doubt.

For present purposes, the salient thing is that these are contractual arrangements, entailing obligations on both sides. At present, it appears that the FBI negotiated with Steele about possibly paying him (if he could corroborate his allegations), but ultimately Steele was not paid (very likely because he couldn’t). Regardless, unless the FBI took information from Steele on the condition that he neither take money from any contractor nor disclose the same information to third parties, Steele would have been free to collect income and disclose information as he pleased. Criminal culpability would be an issue only if Steele lied to the FBI about what he was doing. (Whether the government could have better managed its relationship with Steele is a separate question.)

In any event, it is as odd as it is sadly predictable that Trump critics would scandalize the senators’ well-merited inquiry about Steele’s dubious information and the way it was handled. Grassley and Graham are not calling into question the legitimacy of and need for the so-called Russia investigation. To date, it does not appear that the conclusion that Russia interfered in the 2016 election hinges in any way on Steele’s reporting (although the supposition that the Trump campaign was complicit might, and that is disturbing). Both senators have been vocal about the threats posed by Russia — the need to understand and take action against them. Clearly, they are not intimating that the probe is a charade.

Equally spurious is the claim that to question Steele’s credibility (and, derivatively, the handling of the dossier by the FBI and Justice Department) is to seek to delegitimize the ongoing investigations by Congress and Special Counsel Robert Mueller. (As I have argued, there are reasons to question the legitimacy of Mueller’s investigation, but they pertain to the Justice Department’s non-compliance with controlling regulations, a matter unrelated to the Steele dossier.) The point of these investigations is to determine the nature and scope of Russia’s anti-American operations so that the nation can take appropriate responsive measures. If that is the mission, we should want to know if our intelligence agencies were being fed misinformation.

Plainly, Special Counsel Mueller has taken a hard line against Trump-camp witnesses who have lied to the FBI in the Russia investigation. Are some in the punditocracy seriously suggesting that other witnesses should be immune from investigation because they are anti-Trump?

The question of how Steele may have described his dealings with journalists to American intelligence officials is considerably less important than that of how American intelligence officials described their dealings with Steele to Congress and the courts. That is the subject of the column that follows.