What You Don’t Need to Know: Understanding Intelligence and Law Enforcement Regarding Trump

We are likely to hear plenty of testimony before Congress from law enforcement and intelligence officials in the coming months. People who see Donald Trump as corrupt or worse may find themselves frustrated by what appears to be an attempt by these officials to hide key information from Congress and from the public. Some Americans may even begin developing conspiracy theories about these officials’ silence or apparent evasiveness under oath.

It is possible that some individuals in the FBI, Secret Service, NSA, CIA, etc. may be inappropriately trying to conceal incriminating information about the President. However, when law enforcement or intelligence people conceal such information from Congress in open testimony, it is almost certainly not an attempt to protect the President. Rather, it is an attempt to protect the investigations into his campaign and administration from becoming compromised, because they want to ensure that any wrongdoing can be prosecuted with the best evidence possible when and if arrests are made.

Law enforcement and intelligence have obligations that at times can be hard to balance. They are supposed to serve the American public, which in the minds of many means that the public has a right to know everything that is going on in an investigation, what evidence has been compiled so far, how it was discovered, and all other important information. Americans want to quickly and definitively know, in the words of Richard Nixon, “if their President is a crook,” and they certainly don’t want a crook to stay in office if law enforcement have strong reason to believe that the person is corrupt in some way.

But law enforcement and intelligence personnel are also supposed to serve the American public by doing their job, by “getting the bad guys,” by performing as thorough an investigation as they can, by ensuring that their evidence is as airtight as it can be, by preventing crimes, sabotage, and foreign intelligence operations from being successful in the future. That means that not everything that they know can or should always be disclosed to the public all the time.

The audience for public statements from law enforcement and intelligence is not only the American public. Criminals being investigated are paying attention as well. People considering committing future crimes are paying attention. In the Russia investigation, the Russians are paying attention. Other hostile countries are paying attention. It is important not to give them useful information.

For this reason, there are things that law enforcement officials may be reluctant to disclose publicly, particularly in the middle of an active investigation, including:

• Who is under surveillance
• What facts, testimonies and evidence have been gathered so far
• Who are the witnesses, informants or undercover agents
• What don’t law enforcement currently know
• What evidence don’t they have
• How is information being collected/what techniques are being used
• What is their strategy for getting the needed evidence or making an arrest
• Any sensitive/classified/secret information
• Conclusions that law enforcement have reached so far

Prematurely disclosing such information can damage an active investigation in many possible ways. It can enable a criminal to better know how to cover their tracks, who to stop trusting, who to kill to prevent testimony in court, what not to lie about under oath, or any number of other issues that can complicate or even completely ruin an investigation. That information is appropriate to reveal in court after the arrests, and much may be appropriate to reveal publicly as well at that time, but not during the investigation.

Similarly, there are things that intelligence officials may be reluctant to disclose publicly, especially in the middle of their operations or investigations, including:

• Who or what their sources of information are (or things that could enable someone to figure that out)
• What they know about other foreign powers (or how they know it)
• What they don’t know about other foreign powers (or why they don’t know it)
• What tactics and techniques they use
• Where they are focusing their attention

Gathering intelligence, setting up an effective surveillance operation, and gaining access to key information is very difficult. It can require extensive resources, money, talent, and in some cases years of cultivating trustworthy relationships. Once that information is revealed publicly (and therefore to the people about whom it has been gathered), it becomes far less valuable, or sometimes completely useless. For that reason, intelligence officials are very careful about what they say about their work.

Publicly disclosing information about an intelligence operation or its results – or revealing that information to the wrong person – can have severe consequences beyond merely rendering years of hard work useless. Those consequences include:

• Agents or informants being killed
• Hostile countries learning of previously unknown vulnerabilities of the US, American allies, or themselves
• Hostile countries being able to more effectively conduct intelligence or military operations to harm the US or its allies
• Military operations of the US or Americas allies becoming compromised, resulting in American troops or those of our allies being needlessly killed
• Hostile countries taking military actions elsewhere in the world which they otherwise might not have
• Terrorists knowing how to better avoid detection of their plans and activities

That is why Israel was so outraged – and other nations so deeply concerned – when President Trump boastfully blabbed classified information to Russian officials in the Oval Office: he had recklessy damaged an intelligence operation of an important ally, rendered the information less useful, made that ally’s future intelligence operations more difficult, and potentially put the lives of that ally’s informants or spies at risk – and for what?

Additionally, law enforcement see their own investigations in ways that may not always make immediate sense, especially during testimony or public comments.

Law enforcement treat investigations that are in progress differently from those that have been completed. An ongoing investigation requires some degree of secrecy, for reasons described above. Law enforcement consider an investigation complete when they have gathered what they believe to be all of the evidence, spoken to what they believe to be all of the relevant people involved, and come to a conclusion that the evidence collected is sufficient (or not) for a court of law to potentially determine the guilt or innocence of one or more persons. At that point, if that evidence points sufficiently to guilt, arrests are made, after which law enforcement officials feel more free to publicly discuss some of the details of the case.

An example of this would be former FBI Director James Comey’s controversial handling of the Clinton e-mail investigation. The FBI had been investigating Hillary Clinton and those around her for evidence of conscious wrongdoing in their use of a private e-mail server (potentially more open to being hacked) to transmit classified government information.

The FBI considered that investigation to have been completed in July of 2016: they believed that they had reviewed all of the evidence, and because Clinton was a candidate for President, they took the step of publicly announcing that their investigation was complete. It should be noted that the closing of that investigation did not mean that Hillary had done nothing wrong, but merely that the FBI did not have sufficient evidence to prove in a court of law that she had knowingly and intentionally done something illegal.

In October of 2016, in a separate investigation into illegal online sexual activity by former Senator Anthony Weiner (D-NY), a large number of Clinton-related e-mails from Weiner’s wife, Clinton aid Huma Abedin, were discovered on Weiner’s computer. The FBI could not be instantly certain that all of these e-mails had already been reviewed during the Clinton e-mail investigation. In other words, it was possible that the FBI had been mistaken and premature in concluding in July that they had reviewed all of the evidence.

Because a public announcement had already been made that the Clinton e-mail investigation had been closed, because it now needed to be reopened, and because it was important for the public to know that the investigation’s status had changed, James Comey took the unusual – and to many, outrageous – step of notifying Congress shortly before the election that the FBI was reopening their investigation into Hillary Clinton’s e-mail activity. Through the allocation of extra staff, time and resources, the FBI was able to quickly process the potentially new e-mails and announce before the election that they were once again closing that investigation.

It is almost certain that Comey’s decision impacted the results of the election in favor of Donald Trump, and one can question Comey’s judgment in how he handled things, but looking at it from his perspective, the outcome of the Clinton investigation had become once again not known. Had Hillary become President, and then the e-mails on Weiner’s computer had revealed that she was guilty of provably, knowingly, and intentionally committing a crime, Americans would have been demanding why Comey had concealed from them the fact that the investigation had been reopened. The outrage currently felt by many Democrats about Comey’s last-minute Hillary revelation would have been felt even more strongly by Trump supporters, who would likely have made accusations and developed conspiracy theories about how the FBI had covered for Hillary Clinton to get a Washington insider unjustly elected to protect the status quo. In other words, it was a no-win for Comey, and he made the best decision that he could in a situation where there were no good decisions.

One could ask why Comey did not give what would seem to many people to be equal treatment to the Trump investigation, which was by then underway. Why did he choose not to notify Congress, at the same time as his announcement of reopening the Hillary investigation, that the Trump campaign was also under investigation for activity related to Russia? This again was a judgment call in a situation where there were no good decisions.

At the time, the Trump Campaign did not know that the FBI was actively investigating them. Notifying Congress of that fact while the investigation was ongoing – and in truth just starting – would have damaged the investigation, potentially causing people in the Trump Campaign or the Russians to be more cautious, cover their tracks more thoroughly, stop talking to certain people, etc., all of which would have made gathering sufficient evidence for an eventual prosecution much more difficult or even impossible. The efforts by Russia were huge and sophisticated: it was absolutely in America’s best interest to conduct a thorough and effective investigation of it to prevent such activity in the future. That meant that the FBI did not want to take action that could jeopardize the investigation.

On the other hand, not telling Congress about the Trump-Russia investigation could result in America having a President whose campaign – or who himself – was influenced by or compromised by a hostile foreign power. Comey apparently believed that this was at least something that could be managed through continued monitoring of the situation by the FBI and other law enforcement. This does not mean that he made the right decision, or that he did not. It merely explains the difficult decision that he made.

Finally, when law enforcement and intelligence officials are questioned publicly before Congress, they may say things like “I don’t think that’s appropriate to discuss here” or “I can’t talk about that in open session,” they are not being underhanded. We are used to assuming a greater likelihood of guilt or shiftiness when people “plea the Fifth” under oath, but that is not what is happening here.

Some Congressional hearings are held in “open session,” meaning that the public can potentially watch, listen to, or be made aware of what is said there. Other Congressional hearings are held in “closed session.” Statements and information revealed in closed hearings may not be disclosed publicly, and may only be attended by Senators or Representatives who have been properly “cleared” (formally assessed to be capable of keeping their mouths shut).

The reason for a closed hearing is usually so that Congress (in the form of the handful of “cleared” legislators) can be notified of information that cannot be revealed publicly. In the various Trump-, Russia-, and election-related investigations, referring some subjects to a closed session is likely because disclosing such information in a public setting could jeopardize an investigation or an intelligence operation in some way.

We live in a time when trust in government is low and our suspicions high. It is natural for us to question when someone testifying before Congress appears to be concealing the truth. Understanding the perspectives and priorities of law enforcement and intelligence officials can help us better assess what we are seeing and hearing – and not seeing and hearing – from them.

– rob rünt