On Monday, February 12th, Sen. Grassley, as Chairman of the Judiciary Committee, and Sen. Lindsey Graham, as Chairman of the Subcommittee on Crime and Terrorism, revealed that they had discovered an e-mail which Susan Rice, National Security Adviser to President Obama, sent to herself at precisely 12:15:32 p.m. on Inauguration Day in 2017; the senators obtained the e-mail from the National Archives by requesting records of meetings between President Obama and FBI Director James Comey on the subject Russian interference in the 2016 election. Strangely, what Rice composed at that time was a memo of a meeting held 15 days earlier, on January 5, 2017. The text of the peculiar e-mail was quoted in a letter, released that Monday, which the senators had sent to Rice on the previous Thursday, February 8th.
Though part of the e-mail is classified, the unclassified part reads as follows:
On January 5, following a briefing by IC leadership on Russian hacking during the 2016 Presidential election, President Obama had a brief follow-on conversation with FBI Director Jim Comey and Deputy Attorney General Sally Yates in the Oval Office. Vice President Biden and I were also present.
President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities “by the book.” The President stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective. He reiterated that our law enforcement team needs to proceed as it normally would by the book.
From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.
….[one longer or two shorter paragraphs redacted]….
The President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said he would.
According to contemporary news reports, the Steele dossier—as we now know, a pack of lies about then-candidate Donald Trump paid for by Hillary for America and the DNC, and misrepresented by the FBI and the DOJ to the FISA court in order to surveil a former volunteer on the Trump campaign, Carter Page—was discussed at the meeting.
In their letter the senators found “odd that, among your activities in the final moments on the final day of the Obama administration, you would feel the need to send yourself such an unusual email purporting to document a conversation involving President Obama and his interactions with the FBI regarding the Trump/Russia investigation”; they then posed a series of 12 questions; among the questions they asked:
Did anyone instruct, request, suggest, or imply that you should send yourself the aforementioned Inauguration Day email…?
Is the account of the January 5, 2017 meeting presented in your email accurate?
Other than that email, did you document the January 5, 2017 meeting in any way, such as contemporaneous notes or a formal memo? To the best of your knowledge, did anyone else at that meeting take notes or otherwise memorialize the meeting?
You wrote that President Obama stressed that he was “not asking about, initiating or instructing anything from a law enforcement perspective.” Did President Obama ask about, initiate, or instruct anything from any other perspective relating to the FBI’s investigation?
Did President Obama have any other meetings with Mr. Comey, Ms. Yates, or other government officials about the FBI’s investigation of allegations of collusion between Trump associates and Russia? If so, when did these occur, who participated, and what was discussed?
They requested a reply by February 22nd
Surprisingly, Newt Gingrich, when asked about the Rice e-mail on “Fox & Friends” on Tuesday morning, allowed that “it may have been there ’cause someday she was gonna write a memoir, and she just wanted to have it”; he explained himself further when asked whether her twice using the phrase “by the book” was suspicious: “I’m guessing that she had taken those notes and hadn’t gotten around to it—this is a guess, as a historian—that she had finally gotten around to it, had a few extra minutes, and thought she would capture it in, in a structured document, but that they were probably contemporaneous;…I’ve had that happen to me, I’ll have some piece of paper from a meeting, you know, three weeks ago, that I never quite got around to capturing in an e-mail or putting into a file, and I’ll sit down and write it out, so it may well have been, she was just tidying up, but it does look strange”. But by the evening Newt was singing from a different hymnal, telling Sean Hannity, “Who would’ve dreamed of Susan Rice writing a memo to herself the way she did, 15 days after a meeting? And the memo sure sounds like it’s a whitewash-memo, it’s a ‘let me write this down so if anybody ever asks, it’ll look correct’”. George Neumayr, more trenchantly, described the e-mail as “an ‘I am not guilty’ note.”
Speaker Gingrich seems initially to have projected his own interest in history, and into historical accuracy, onto Susan Rice; to my knowledge, however, there is nothing which indicates that Rice has either any interest in or any knowledge of history, and the notion that she would be interested in historical accuracy is preposterous: this is the same Susan Rice who went on five Sunday shows after the attack in Benghanzi (September 11, 2012) and called it a response to a YouTube video, since the truth—that it was a premeditated attack by al Qaeda which had caught the US flat-footed—contradicted one of the talking points of the Obama campaign for re-election, namely, that he had so “decimated” al Qaeda that it was “on the run”; again, in March 2017, after Rep. Devin Nunes had initially disclosed that the president-elect and his transition team had been “monitored,” she claimed in an interview to “know nothing about this” and to be “surprised to see reports from Chairman Nunes on that count today,” but six months later she admitted to unmasking Trump advisers who met with the crown prince of the UAE in Dec. 2017.
As many observers have noted, the e-mail looks like an attempt by Rice, while she still possessed a government e-mail account relatively easily accessible to future investigators and subject to FOIA requests, to create a record showing Obama warning against doing anything illegal while looking into Russian interference in the 2016 election. As some observers, such as Jay Sekulow, have pointed out, the statement, attributed to Obama in the e-mail, making the sharing of information about Russia with the Trump officials depend in part on information to be gleaned by Comey, strongly implies that Obama knew about the FISA surveillance of Carter Page; he must at a minimum have known that a dossier damaging to Trump had been acquired by the FBI, and very probably he knew also that it was being used as the basis for FISA title-one surveillance of a man who had temporarily volunteered with the Trump campaign. That conclusion is buttressed by the fact that Comey told the President-elect of the dossier in a meeting at Trump Tower on the very next day, January 6, 2017; it is also consistent with the text, probably referring to the investigation of Donald Trump rather than of Hillary Clinton, sent from FBI lawyer Lisa Page to FBI agent Peter Strzok on September 2, 2016: “potus wants to know everything we are doing.” Although to us now, knowing that Hillary for America and the DNC paid for the Steele dossier, the Inauguration-Day e-mail looks at first like a CYA-statement, exonerating Obama by putting him on record stressing the need to follow the rules, it has to be remembered that the public only learned of the origin of the dossier in October 2017; it is not established that either Rice or Obama knew about its origin already in early January (in fact, as we shall see, the e-mail can be taken to imply the opposite), nor that either was aware that the FBI and the DOJ had deceived a FISA court judge into granting the request for surveillance by disguising its origin. It then seems that Obama, in the absence of evidence to the contrary, can claim that Comey kept him in the dark about the provenance of the dossier, so that he is as much a victim of the machinations of Comey as the FISA judges are presumed to have been.
The e-mail puts Comey in some legal jeopardy in any case, as analyst Colin Kalmbacher realized, since he omitted the two meetings from a carefully prepared “Statement for the Record” which he provided to the Senate Select Committee on Intelligence on June 8, 2017, instead reporting merely that “I spoke alone with President Obama twice in person (and never on the phone) – once in 2015 to discuss law enforcement policy issues and a second time, briefly, for him to say goodbye in late 2016”; as Kalmbacher commented, “critics are likely to view Comey’s addition of the qualifier ‘alone’…as a cagey bit of lawyering used to avoid referencing the January 5, 2017 meeting.” And, as Newt Gingrich pointed out in his evening interview with Sean Hannity, Comey never mentioned the meeting with Obama envisaged in the Page text message from the beginning of September; presumably Comey would offer the same excuse for that omission, i.e., that he did not meet with Obama “alone” on that occasion.
Another startling detail, not lost on experts like Sharyl Attkisson, is Obama saying “he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia”; this statement, if at all accurate, indicates that Obama, and presumably then also Biden and Rice, put credence in the Steele dossier at that time; Comey perhaps was the only person in the meeting who knew its origins, unless Yates also did; Obama and the others—even if they had some inkling, along the lines of the watered-down statement given by the FBI and the DOJ to the FISA court, that the dossier was not free from partisan bias—must have reasoned that where there was so much smoke there must be some fire; they must have been hoping that the surveillance might yet, before Inauguration Day, turn up evidence of collusion between Trump and Russia, so that he could be prevented from ever taking office.
It has not escaped notice that the depiction of Obama stressing that law enforcement agencies should go “by the book” is ambiguous. This reminder came, or is alleged to have come, after he had been in office for seven years and eleven and one-half months! If Obama made such a remark in the Oval Office at that point, it would seem to imply rather clearly that there had been occasions during his tenure when law enforcement had not gone “by the book,” for otherwise, as many have noted, there would have been no need to stress the importance of going “by the book” in that particular investigation; the remark has been judged very damning, in part because we know that there were in fact such occasions, Exhibit A being the whitewash of the Clinton e-mail investigation. On the other hand—and this seems not to have been realized—, it in fact would not have been out of place for Obama, in certain circumstances, to commence a conversation by stressing the need to go “by the book”: not if he expected the ensuing meeting to produce a recommendation to federal officials either to skate close to the line of illegality or actually to cross over it; not inasmuch as he must have already known that members of the transition team and the president-elect were being captured through surveillance, in which case he can be taken to have meant that it was especially important, given the identities of the people surveilled, that everything be in order legally; not if he was recurring to the need to go “by the book” in the second of the two successive meetings, a reconstruction bolstered by the wording of Rice, who has Obama “stressing his continued commitment” to go “by the book,” the continuation in question being conceivably not from previous practice, but from the prior conversation. A defender of Obama thus might claim that he knew about the surveillance, and even that the warrant would come up for renewal on January 19, 2017, the day before he left office, but did not know that the FISA affidavit was fraudulent because it disguised the origin of the dossier. Given his history of using government agencies like the FBI and the IRS to harass his political opponents, however, it is certainly conceivable that Obama, while emphasizing the necessity of going “by the book,” was doing so for the record, even though he knew that the FBI and the DOJ were not playing it straight with the FISA court. Such insincerity might seem refuted by the date of the e-mail/memo: if Obama had only made the statement in order to get on the record as having said it, he should have taken care to have the conversation memorialized on that very day, 5 January; but we have to remember that the meeting recounted by the e-mail is a follow-on: it might be that Obama had similarly emphasized going “by the book” in the immediately preceding meeting, and that he had done it there only for the record, and had taken care to have that sentiment memorialized contemporaneously. Thus, between these two possibilities—Obama actually said “by the book,” and was sincere; Obama actually said “by the book,” but was insincere—, it would be difficult to choose.
It is at least as likely, however, that Obama never said it. We are dealing with Susan Rice, and cannot expect her to have been more honest when e-mailing herself than she has been when making statements on television; she is a practiced liar, and she was working for a practiced liar. If she herself made up the warning of Obama to go “by the book,” she subsequently would have had to worry about the accounts of the others present at the meeting; if Obama agreed that he had said it, she could expect that Biden would say no more than that he could not recall it; the warning “by the book” would have been directed principally at Comey and Deputy Atty. Gen. Sally Yates, the other two people present, and she probably reckoned that they, too, would not strenuously contradict her, but only claim not to recall that specific statement, if asked. It is worth noting that Rice copied her aide Curtis R. Ried on the e-mail; it would be interesting to learn how often she wrote memorandum-like e-mails, how belatedly, and how often she copied him; perhaps she did so in this instance so that he would know what her version of the meeting was, and not say anything which would be inconsistent with that version. It then seems that Rice could reasonably hope to get away with the embellishment, if it was such.
But if the statement was invented by Rice, we have to ask whether she would have falsely attributed to Obama an admonition to go “by the book,” unless she knew that some of the things which intelligence and law-enforcement officials had been doing in connection with the Russia-investigation were illegal. It might be significant that the date of the meeting, January 5th, was 14 days removed from the date at which the FISA warrant to spy on Carter Page would have to be renewed. It is certainly conceivable that Comey indicated to Obama and the others present that nothing had yet been found which made the renewal of the warrant a certainty; perhaps Comey in this situation raised the possibility of action of some kind by Obama which would have made it easier to secure a renewal of the warrant; it is not difficult, for example, to imagine Comey musing that it would be impossible to renew the warrant, unless they found something, as long as they continued to follow the “Woods procedures”; he thus would not necessarily have been asking Obama to sign some finding or executive order, but at least orally to give the green-light to ignoring those procedures; in this context, incidentally, it would have made sense for Obama to state or iterate that it was necessary to go “by the book,” because Comey had just invited him to countenance their throwing it out. Note also that the person suggesting a deviation from usual procedures need not have been Comey, but could have been another, even Rice herself, which would help explain her desire to commit her version of the meeting to writing.
If we assume that the words “by the book,” in this context, serve to distance Obama from activity which in fact was not so, we must attempt to determine what that activity was. A clue to the transgression worrying Rice might lie in the circumstance that she waited until January 20th to put Obama on record saying that he wanted everything done by intelligence and law enforcement to be on the up-and-up. Here is where her unmasking, her access to the Presidential Daily Briefing, and the promise she mentions Comey giving Obama in the meeting on January 5th, “to inform him if anything changes,” all come in: since she knew whatever was being learned from the surveillance of Carter Page, she knew that nothing of import had been found during the three months of surveillance, and she was able to discover that the FISA warrant had nevertheless been renewed. If she was pleasantly surprised upon first learning of the renewal, her joy might have yielded to concern once she asked herself how the renewal had been achieved: she had every reason to suspect, from whatever point she found out about it, whether in the course of the 19th or in the a.m. on the 20th, that it had been illegal, because the FBI had deceived the FISA court, even if she believed that the original warrant had been legal, as she might have. As she pondered how Comey persuaded a FISA judge to extend the surveillance, perhaps she worried that the meeting on January 5th, in the Oval Office, which she had attended, was mentioned in the new affidavit, and that something she herself had said figured therein; she might for that reason have added the claim that Obama “stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective,” as opposed to having him do the opposite with her acquiescence; but it hardly seems likely that Obama actually said something close to this statement: if you don’t ask about something, or initiate something, or instruct something, most of the time you simply fail to do it, you do not point out to your interlocutors that you are not doing what you are not doing. She perhaps felt it was necessary to invent the triple denial “not asking about, initiating or instructing anything” because of a particular fear that the request she reports Obama making to Comey, “to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team,” might have been portrayed by Comey in the affidavit as a judgment that the surveillance should be continued, particularly if she has “cleaned up” what Obama said, in order to make it appear innocuous. She might seem at first glance to be covering for Obama only, but if he made a request which was capable of being portrayed as an abuse of power, and if she, being present in the meeting, failed to voice an objection, she would share in the culpability, and so in covering for Obama in such a circumstance she would also be covering for herself.
There is an alternative explanation for the timing of the e-mail which has nothing to do with the renewal of the FISA surveillance of Carter Page. We have to remember that Obama and Rice, in January 2017, seem to have believed that the president-elect might in fact have colluded with Russians in some way in order to get elected, and that determined efforts might yet establish the truth of such collusion, or at least of some of the damaging information found in the dossier, or, perhaps, if all else failed, that continued surveillance and investigation might uncover other damaging information which was not in the dossier. If Rice actually nurtured a fantasy that Trump could be prevented from taking office, she would have been less worried about “cutting corners,” such as she did in unmasking American citizens caught up in surveillance of foreign nationals. She would have been forced to give up the fantasy as noon approached on January 20th, however. She might in those circumstances have written the e-mail with two main goals in mind: to C Obama’s A by creating a record of him saying that everything should be “by the book,” and to portray him as being mainly concerned with “national security,” and to C her own A in the unmasking, which she could represent as being pursuant to the directive of the President in that Oval Office meeting. The rather strangely worded admonition “President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia” is encumbered by the repeated pronoun “we”: it is unclear at first who “we” are, or if indeed each “we” denotes the same people; since Comey was present, and serving in the executive branch which Obama still headed, one could take the statement to mean “as we (=Obama officials leaving office on January 20th, i.e., the Obama team) engage with the incoming team, we (=we who currently serve in the executive branch and are involved in surveilling citizens, chiefly those continuing to serve after January 20th, i.e., FBI and DOJ officials) are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia”; but one can also read the clauses to mean that Obama was extending the responsibility for discovering nefarious cooperation between the Trump team and Russia to his political appointees, understanding “as we (=any Obama appointee meeting with Trump counterparts) engage with the incoming team, we (again =any Obama appointee meeting with Trump counterparts, especially ones with the clearance to unmask American citizens caught up in incidental surveillance) are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.” In other words, Rice wrote a memo which, while attempting to put Obama in the clear by having him state and repeat that everything should be “by the book,” also puts herself in the clear, as far as the unmasking goes, by having him more or less authorize such unmaskings.
John Hinderaker, focusing on the prospective refusal to “share information fully as it relates to Russia,” came to the conclusion that Rice was implicated therein: “Rice was nervous about the fact that, at the president’s direction, she had failed to ‘share information fully as it relates to Russia’ with President Trump’s incoming national security team…. Susan Rice is far from the brightest bulb on the tree, but she was well aware that by concealing facts ostensibly relating to national security from her counterpart in the new administration—General Michael Flynn—she was, at a minimum, violating longstanding civic norms…. So Rice wanted to be able to…tell the world that she hid relevant facts about Russia from the new administration on Barack Obama’s orders.” The information which Rice hid Hinderaker supposed to be the origins of the dossier and the deception of the FISA court, but it is not established that Rice knew those details; it seems reasonable, on the other hand, that the ongoing surveillance on Carter Page was something which the Obama administration was keeping secret from the incoming Trump administration, but, as the FISA process does not involve the National Security Adviser, it does not seem correct to conclude that there was any obligation for Susan Rice to reveal the existence of the FISA warrant to Michael Flynn; the two attendees of the meeting who were involved in the FISA process, Comey and Yates, would have been the ones being authorized to refuse to “share information” about surveillance “fully as it relates to Russia” with members of the incoming Administration; therein lies the importance of the circumstance that Comey was meeting with President-elect Trump on the following day: he received authorization to keep full knowledge of the FISA warrant from Trump, as Yates received authorization to keep it from Trump appointees to the DOJ.
For Rice herself, the key word in the e-mail must have been “ascertain,” for it was that word which justified her unmaskings; but she, between the 5th and the 20th, never found any damaging information about the Trump team which she then proceeded to withhold from Flynn on the ground that he might have been in on the plot, so her exposure was limited to the aggressive snooping whereby she sought to find the silver bullet to keep Trump from ever taking office. Putting it all together, we can now say more definitively that the referents of “we” in the confusing directive overlap: we may interpret it to mean “Obama said he wants to be sure that, as we engage with the incoming team, we (Comey, Yates, & Rice) are mindful to ascertain (Comey & Yates through FISA surveillance, and Rice through unmasking of incidentally surveilled American citizens in the Trump orbit) if there is any reason that we (primarily Comey & Yates, Rice only if she would later learn something by unmasking) cannot share information fully as it relates to Russia”; thus Obama seems to have determined that full information about the FISA surveillance of Page should be withheld and to have hoped that one way or another—either through the FBI being able to verify charges in the Steele dossier, or through the surveillance of Carter Page, or through the unmaskings by Rice and others—some evidence of collusion between the Trump campaign and Russia would at last be found, which would retroactively justify not only the decision to withhold information from the suspects, but also the decision to surveil them in the first place. Despite the watered-down description of Rice, it then seems clear enough that Obama authorized the withholding of information from the Trump team on national-security grounds; a decision certainly underhanded and highly partisan, but one which would not seem to be illegal, as long as he can claim to have been ignorant of the origins of the dossier and the deception of the FISA court.
Hinderaker observed: “CYA memos are rarely a good idea. Most often, they reveal what the author was trying to conceal.” The unredacted version of the Rice e-mail, with language which is in places vague, and perhaps deliberately so, does not reveal with precision what Rice was trying to conceal, but does gives us some idea of what worried her, and thus confirms the suspicions raised by its timing. Even if we set aside the FISA abuses, which implicate Rice less than others, if at all, we only get so far: at first glance the unmaskings would seem to prove that Obama could not have sincerely uttered the phrase “by the book,” and so lead to the conclusion that he did not utter it, or uttered it insincerely, but in the mind of Rice, and in that of Obama, the unmaskings, which certainly were abusive, might have seemed quite restrained, and hence like going “by the book,” inasmuch as they were contenting themselves with getting what could be got through incidental surveillance whenever they unmasked; thus the unmaskings do not exclude the possibility that Obama, even if he had them in mind, sincerely uttered the phrase “by the book,” and they do not exclude the possibility that the remark, whether invented or not, was considered by Rice to allow the unmaskings; similarly, the duty “to ascertain” is very convenient for Rice, justifying her unmaskings, but that does not mean that the attribution is untrue, nor that she went beyond what Obama intended by her unmasking-activity, for that was the fastest and most reliable means “to ascertain…any reason” not to share Russia-related intelligence information with the Trump team.
The part of the e-mail which should most concern Obama is the instruction “mindful to ascertain,” upon which Rice seems to have relied in unmasking; it seems to be established that the unmaskings late in the Obama administration were wholesale, and agreed that such a lack of discrimination is illegal; therefore, although Rice attempted to couch the order very vaguely, it will put Obama in some difficulty if it is shown that Rice acted illegally in response to that order: Obama might choose to dispute, on some ground or other, that the order was illegal, but his prospects would not be great, for if an activity generally considered illegal was undertaken pursuant to an order of his, Obama, to avoid conceding that he ordered an illegal activity, would have to maintain instead that his order had been misunderstood, and to do that convincingly he would have to offer a credible alternative explanation of what he meant by “ascertain.” Rice does not have long to reply, but it might be a while before the public sees her answers: Sen. Grassley might want to get separate accounts from the others present in the meeting before publishing hers, to see how well they match.