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Harry Litman [00:00:07] Welcome back to Talking Feds. A prosecutors roundtable that brings together prominent former Department of Justice officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. 

Harry Litman [00:00:31] I'll start today with a personal confession. I feel very on top of the various issues we discuss here on Talking Feds and that dominate the headlines, with one exception: whenever the subject turns to that counterintelligence investigation of the Trump campaign and the President personally, I have to redouble my concentration just to stay in the game. And, of course I recognize that the counterintelligence investigation may be the most grave, intricate and important topic of them all. 


Harry Litman [00:01:04] I'm assuming that many of our listeners are like me and so they are eager for both a real primer on what a counterintelligence investigation is and how it works as well as a sophisticated analysis of the implications and portents of the particular counterintelligence investigation of President Trump and his campaign. That's what today's episode is about. And to do it we've brought together two of the most knowledgeable, clear-thinking and experienced commentators in the country. 

Harry Litman [00:01:40] First Frank Figliuzzi returns to Talking Feds. Frank served for 25 years in the FBI. He retired as the assistant director of the Bureau's Counterintelligence Division in 2012. Prior to that, he was the Bureau's chief inspector the Special Agent in charge of the FBI Cleveland Division, and the assistant special agent in charge of the Miami field office. Frank has led teams from Atlanta to San Francisco, including an office in Silicon Valley exclusively devoted to counterintelligence. He joins us today from Tucson, Arizona. 


Harry Litman [00:02:22] Welcome back Frank. 


Frank Figliuzzi [00:02:24]It's a pleasure to be back Harry. Thanks for having me. 


Harry Litman [00:02:27] And we're joined also for the first time by Josh Campbell from CNN. Josh is a former supervisory special agent with the FBI and served as Special Assistant to the FBI director. His bureau career included conducting terrorism, kidnapping and cyber investigations, as well as serving overseas in U.S. embassies and embedded in faraway places with military special operation teams and the CIA. He is an officer in the Navy Reserve and teaches national security at the University of Southern California. We've been trying to have him on for many weeks and this is the perfect episode to welcome him for the first time to Talking Feds. Thanks very much for joining us, Josh. 


Josh Campbell [00:03:15] Glad this worked, Harry. Great to be with you. 


Harry Litman [00:03:17] So to just set things up I think it's public knowledge that these specific counterintelligence investigation was opened in 2016. The then director of the FBI publicly announced it in March 2017, and then in May 2017, the President was added as a subject, just in the aftermath of his firing of Jim Comey. 


Harry Litman [00:03:44] So Josh can you just give us a sense of what it means to have opened the investigation in the first place and then to added someone, in this case the President of the United States, as an additional subject, what that entailed, how many people worked on it, and those sorts of basic facts. 


Josh Campbell [00:04:07] Sure. So, I think it's important at the outset to make clear that I am discussing publicly available information. You know, nothing from my time in government that  hasn't since been reported. Obviously, anyone who served at that time would fall under the same restrictions. But let's start with the basics of a counterintelligence investigation. The easiest way to really grasp what an investigation entails is by looking at what it's not. So, think about your typical criminal investigation or counterterrorism investigation or cyber investigation where you have the FBI or law enforcement that are trying to stop threats of various different natures: they could be violent criminals. Again it could be terrorists. It could be cyber-criminals and they have tools that they can use at the disposal. 


Harry Litman [00:04:50] Tools like criminal statutes and the like or subpoenas or what, what do you mean?


Josh Campbell [00:04:55] Correct. Yeah. So there's a whole different set of tools that come with national security investigations that go beyond just your typical criminal case and I'll talk about those in a second. But when we talk about counterintelligence investigations we're talking about threats to the United States of America from hostile foreign governments, for example, those who are tasked with trying to steal our secrets, trying to influence our country in an illegal way. And so you have inside the FBI a robust team both at headquarters and in the field. Indeed folks that work overseas that focus on this primary mission that is protecting the United States from foreign intelligence threats and that comes under that counter-intelligence division and cases. 


Harry Litman [00:05:36] Alright, so Frank. So all right shifting to you we have this team this robust team dedicated to this purpose within the bureau. And, you know, they come in for work and go to their desk and what happens that they launch into action? In a criminal setting, you know, an agent would come in with the, with the report of a crime. In a fire station there'd be a fire alarm. What what what happens to get these men and women going?


Frank Figliuzzi [00:06:06]Great question. I found Harry, that if nothing else, the special counsel inquiry has been an opportunity for all of us to educate the public on something that historically the public had little knowledge of. And so that's been, if there's one refreshing part of this entire point in our history, it's to try to educate on counterintelligence. To follow up and continue with what Josh was saying, the, the the powers of the FBI come from a different place when it comes to counterintelligence. Instead of statutes, and there are some statutes of course that re-relate to counterintelligence like espionage, but unlike criminal statutes the authority of the FBI and counter-intelligence comes to us from a Presidential executive order and it dates back to Executive Order 12333, if people care that's most most FBI agents can tell you. Most counterintelligence agents can tell you that that's where their authority comes from. And just to give you an idea of size and scope here. Every single one of the FBI has 56 field offices has a counter intelligence squad so dedicated agents whether we're talking about Mobil,e Alabama or New York City or San Francisco, there are at least one squad, and in these large offices, entire branches of squads dedicated to counter-intelligence. So when an agent --


Harry Litman [00:07:31] So in a given investigation would it be worked by a squad from a single office or many different ones? And about how many I know this might be hard to generalize but about how many such investigations are open across the country at any one time. 


Frank Figliuzzi [00:07:47]So that number is is going to be classified because much of the FBI counterintelligence program, its budget its numbers is considered classified. But I think to get a feel for this if you think about the fact that every single one of 56 officers has at least one squad and many have multiple specialized counterintelligence squads you're getting an idea that the numbers of investigations every year are easily in the thousands. So that's that's what we're looking at. And then you sit, you ask the question what would generate a case. well, a little bit like criminal cases: they're both proactively generated and they're reactively generated. 


Frank Figliuzzi [00:08:27]Generally speaking there is a foreign intelligence presence in the United States at all times. And historically, this has always been the case, almost every country that's not an ally of the United States spies on us. And one of the ways they do that traditionally is through their diplomatic presence in the country. So if you see a diplomatic establishment, a consulate, an embassy, it's quite likely that inside those buildings are operating actual bona fide intelligence officers from foreign countries so that diplomatic presence generates a tremendous amount of coverage and interest from the Bureau. And then, think about the fact that other non diplomatic players are involved whether they're foreign students, whether they're cutouts, operatives, sleepers, travelers, visitors, all here with another agenda, wearing two hats. So, there you can see that every field office can come into play here. And if you've got an intelligence officer who's traveling let's say they're coming out of Washington and they're, they're getting on a plane to go to L.A. You can rest assured that multiple officers are involved in tracking that. 


Harry Litman [00:09:35] All right. Well so, so, Josh with respect to at least the publicly available information on the investigation that was opened in 2016, I think you know there's ongoing political controversy. 


Josh Campbell [00:09:51] I've heard a bit of that. 


Harry Litman [00:09:54] Advocates of the president are up in arms about the supposed inception of it. Can you illustrate how things kind of were up and running and what kind of predicate, legally and sort of legal standards needed to be satisfied in order to start it, how many people how would it have taken account of the high level stakes of this, the campaign and eventually the President. And the extent you can speak to this that concerns of the Trump camp of having been flawed at the inception.


Josh Campbell [00:10:31] So now that we've talked about the FBI, it's mission and what counterintelligence is let's all take ourselves back in that time and place in 2016, and put yourself in the shoes of an FBI agent whose job is to protect the country from counterintelligence threats. You had these squads that Frank mentioned, you have a headquarters division that oversees these investigations and basically manages the most high profile cases inside the organization, and they stared at a set of facts where you had people that were associated with the Trump campaign who had these questionable ties to the government of Russia, a foreign adversary. 


Josh Campbell [00:11:07] Now, the FBI you know and now publicly we all know that there was a campaign under way by the Kremlin to undermine the election as it related to influence operations, to changing the minds of voters through social media campaigns, they obviously hacked into the DNC and stole emails you know associated with Hillary Clinton's campaign manager, for example. So you had that robust campaign that was under way and the FBI and the larger intelligence community knew that the Russians were up to no good. Now square that with a set of facts that the FBI was staring at and that is you had four people, this has been publicly reported, associated with Team Trump that had questionable ties to the Russians. The first which wa George Papadopoulos who was campaign foreign policy adviser who we all know now, you know, met in London with a diplomat from Australia and actually talked about Russia having dirt on Hillary Clinton and offering that up. 


Harry Litman [00:12:04] Isn't that information, came to us from allies, yes? From the Australian intelligence services that workswith us. Is that the source of it? 


Josh Campbell [00:12:12] That's correct. So it has been reported that it came from the Australians that they saw this this haul of emails that were being released and wondered if that was connected to that conversation that this diplomat had with Trump campaign adviser George Papadopoulos and brought that to the attention of the U.S. government. 


Harry Litman [00:12:29] And so just as there is kind of you know normal adversaries on a sort of list, there's also at least a handful of friendly countries that that will join with us or you know give us give us whatever they know, to, to, they're sort of on our side. 


Josh Campbell [00:12:46] That's right, yeah. There is a special intelligence arrangement sharing group that's called the "Five Eyes" colloquially, and that is the United States, Great Britain, Canada, Australia, and New Zealand. And these are countries that share information on a regular basis as it relates to highly classified intelligence. Again, the goal to you know if you have something that would help one of your ally partners you share that information. So that's baked into that relationship. 


Josh Campbell [00:13:08] And so the Australian diplomat, you know, did what we would expect foreign partners to do and when you're sitting on something that may help the United States stop an intelligence threat he brought that to the attention, reportedly, of the U.S. government. So that's one line of effort, I'll hit on the other to run quickly so you had Paul Manafort the president's campaign manager, obviously had these questionable ties to Russia and to the Ukraine. You had Carter Page an another adviser to the Trump campaign had these question all ties to the Kremlin. He had travelled there he had been caught up before as it's been reported you know being associated with foreign spies associated with Russia and then the last one was Michael Flynn who were the national security adviser as we all know who left, you know, was fired unceremoniously. But at the time he's had these connections to the Russian ambassador that he was lying about. And so the FBI stared at all of these facts and wondered: "Is this something that, you know, obviously it concerns us because we see the number of issues here. But is this a threat? Are these people actually wittingly working with a hostile foreign adversary to throw an election?". 


Josh Campbell [00:14:11] And that was again the work that we expect the FBI to do to look into that, to launch an investigation. They can't just go and start trolling and digging through, uh, records and you know without actually having an articulable basis to do so. But again staring at that set of facts, that is what led to this investigation that we now know is the Russia investigation that then was handed over to Robert Mueller following my former boss Jim Comey's firing, and the results of which we just heard last month. 


Harry Litman [00:14:37] Wow. OK so a couple of questions this prompts. First, you've had occasional suggestions from Trump himself that, and Giuliani, I know, that, "Oh what's the big deal. This happens all the time. Everyone spies on everyone else." So the suggestion would have been it happened in 2012, it'll happen in 2020. So to the extent you can you can speak to it, how sort of novel and alarming would a set of facts like that, seem to be at the time. And then second, sort of, separate kind of legal question Frank, is you know, Josh outlines these facts that are coming to the attention of the people in the counterintelligence divisions. Do they weigh them against a particular standard? Is there some threshold or modicum of proof that they have to say, OK, you put these all together and there is you know as you might say in the criminal setting, reasonable suspicion, probable cause, you know is there anything like that to guide the analysis of your sort of line FBI counterintelligence guy. 


Frank Figliuzzi [00:15:45]Yeah great question. I think there's a lot of misinformation out there about how counterintelligence cases can be predicated. The truth is that counterintelligence is perhaps the most highly regulated program in the FBI. There are a lot of agents who kind of shy away from it because it's so tightly controlled and regulated and there are so many hoops to jump through. So, for example to get to the point where you're at what's called a full counter intelligence investigation where the entire panoply of FBI investigative techniques are open to you including FISA warrants, electronic surveillance ordered by a court, the standard is specific and articulable facts that someone is or may be an agent of a foreign power. If you're at the first stage which is a preliminary inquiry, you're at a reasonable suspicion level that someone is or may be the subject of recruitment or or an agent of a foreign power. So, you've got those thresholds that get you into a case and have to be approved. And then you asked Harry about how common this kind of thing would be... 


Harry Litman [00:16:53] Yeah, When people were looking at this in 2016, you know, some defenders of Trump would say you know this is a real yawner. I mean I think it struck the normal public, certainly it struck me as a stunning fact, the extent and success which is known adversary was able to interfere with the election. But there have been some suggestions that that's just naive on the part of the public. 


Frank Figliuzzi [00:17:19]Well I can say this with with great confidence: In my 25 years of FBI experience, in-including leading all counterintelligence investigations, there has never been a set of facts that mirrors the degree of interference by a foreign power in an American election simply has never happened before. It's unprecedented. The other thing Harry, that, I keep an eye on on these facts is not only that a foreign power was interested in getting next to presidential candidate because quite frankly that that is common. The attempts by foreign powers to influence and shape any candidate that has a serious shot or even those who don't have a serious shot at becoming president, that's par for the course. What is not par for the course is the receptivity of that candidate and his team to get that help and take that help. And I think that in part is what got the Bureau's attention. 


Harry Litman [00:18:18] You agree, Josh?


Josh Campbell [00:18:19] I do agree. I mean obviously the set of circumstances here are unique. As Frank mentioned this is not new as it relates to foreign entities trying to influence our affairs. But again going back in the other direction we haven't seen where you've had that level of receptivity, you know, actively seeking to set up a meeting for example at Trump Tower to see what the Russians have, not picking up the phone to call the FBI whenever a foreign government is attempting to provide information, something we would expect any campaign, whether you're a Republican or Democrat, that goes back to that issue of patriotism. Do you want a foreign government influencing our election or do you want law enforcement stopping a counter-intelligence threat? We know the decision that the Trump folks chose, or the decision they made. And again all of these were red flags. There have been a lot of villains inside the FBI. If you know if you're in the Trump campaign, talking about Deputy Director Andrew McCabe, Peter Strzok, Lisa Page. These were the senior executives. It's important to understand that senior executives inside the FBI, they don't run the FISAs, they don't run the investigations, they don't kick these things off. Sure, they approve them. But for you to, for anyone to say that this group got together and said we're going to employ these tools in order to go after the Trump campaign, they just don't know how the FBI works. 


Harry Litman [00:19:38] The whole FISA issue, I think, is is a separate legal and political thicket. And I think Talking Feds will do a whole other episode on it. It's something that that many people want to know more about, though the basic point that you make Josh, that look, there is serious oversight levels and levels of review and it's kind of the worst day for an agent when this happens because there are so many hoops to jump through continually. I think really is, does respond vigorously to the notion that there was some casual plot going on here. 


Josh Campbell [00:20:18] When it comes to Strzok, Paige and their text messages. I think there are two things that can be true at the same time. The first is they exercised terrible judgment in misbehavior in both the communications, their method of communications, the substance of their communications. I think that it's true to say that that was wrong. I think it's also true to say that that did not impact their investigative work. And the reason I know that, is because again goes back to the basic framework of the FBI, you don't have one or two or three people working an investigation and you certainly don't have that smaller group working an investigation as high profile as one into either Hillary Clinton or the Donald Trump campaign. 


Josh Campbell [00:21:00] And so if anyone else on that investigative team, up and down the chain of command, down to the street agent and analysts that were working on the investigation from the field office, if any of those people would have thought that their investigation was being swayed or misconstrued based on some type of political, you know the leanings of one of their executives, they would've been screaming from the rooftops. We would've heard from those people that either Strzok and Page manufactured evidence or they dismissed evidence. We've heard none of that. Again which shows that yes they were wrong in their behavior but it didn't impact their work. 


Frank Figliuzzi [00:21:35]Would we be in a different place today if Strzok and Page were not involved in this case. And as Josh referenced there are so many multiple points of failure that would have to fail, that would just have to collapse in order for the predication in a case to not be there and still have the case proceed. So I have confidence that the structure, the system, the oversight, the lawyers, DOJ, FBI, the field offices -- all have to get involved and would all have to fail to a point that this became fabricated or falsely predicated. And I hate to say this but I almost invite the inspector general investigation to determine whether or not all these things failed at once. 


Josh Campbell [00:22:22] I would, I would agree with that. Let me just say also, I mean, the whole issue of a deep state or essentially what the President and his allies that talk about this cabal, essentially what they're saying is that the FBI, their leadership was corrupt. That they were crooks, that they were violating their oath by going after a political campaign. Which in my judgment is complete nonsense because their argument is a house of cards. Now go back to that place in time where you had the President, President-elect Donald Trump, who was then candidate Trump running for office. And what they would have you believe is that people inside the FBI were trying to bring him down. The one thing that they never acknowledge is that if that were the case, that there were people inside the FBI that were trying to bring down Donald Trump, why didn't they leak that his campaign was under investigation due to the ties to the Russians? What they would have you believe is that the FBI, they were corrupt and criminal and trying to go after Trump but they waited until after he got elected in order to actually do something about it. Which again is nonsense, it's a house of cards. 


Harry Litman [00:23:24] OK. So let me just ask then: We have all these, these levels of review and care and now an extra, serious and unusual step is taken which is somewhere around May in the wake of the firing of Comey, the President of the United States is added as a subject to this preexisting counterintelligence investigation. Again, based on public information or surmise. What would that have entailed? What, how, how if at all, would the bureau have taken account of this anomalous and kind of unsettling fact that the leader of the free world is now part of this investigation. Frank?


Frank Figliuzzi [00:24:19]Yeah very significant and I have to tell you I was in a green room at 30 Rockefeller Plaza at NBC headquarters with Andy McCabe as he was preparing to go on the air with Nicole Wallace. And we had a very interesting discussion, where I asked him to clarify exactly what happened there, because it had previously been reported that he opened a separate case, he or he ordered to be open a separate case on Trump, and what he clarified later said on the air is that he added Trump's name to the existing Russian counterintelligence case. Now why is that important? Well for one thing by all appearances, it appears that that Russian counterintelligence case was extremely well predicated and was likely a full counterintelligence investigation. Remember the standard there is specific and articulable facts that someone is or may be an agent of a foreign power. So to add --. 


Harry Litman [00:25:20] Right, but that's the standard to ripen from a preliminary inquiry to full CI. Is that right?


Frank Figliuzzi [00:25:24]That's correct. So if you're adding the president's name to the title of that case or lumping in, that's his set of facts to the existing predication, you've got a significant investigation going and I think I think we all need to remember that since this all of this is very classified, that there's much more to this than we likely know. So we don't we're all talking about it. You've heard endless amounts of commentary about the steel dossier the Carter Page case and FISA. But there's there's more going on. And I've often said we've seen the tip of the iceberg on, on this classified counterintelligence case. Furthermore we have very little indication if any that the Special Counsel actually took this case on, investigated it, and resolved it. And in fact quite the opposite, in the Special Counsel's report, we see him reference embedded FBI agents that are there for the sole purpose of funneling intelligence back to FBI headquarters, and what appears to be that counterintelligence case. So but the larger issue of whether or not this president or others are compromised co-opted recruited or vulnerable to a foreign intelligence service I believe still, still rests, back with the FBI counterintelligence division. 


Harry Litman [00:26:48] Wow. And so we're going to talk about that quite a bit after the break. But, but so Josh, I mean, same question to you. First as I understand it, this is a literal fact when, you know, there's the heading of the CI, there are papers and the name you know Donald Trump is at the top of the, of the caption, as it were. I mean it's a formal step to add him to the overall investigation. Yes? That's right. 


Josh Campbell [00:27:18] As it's been reported you know he was added to that ongoing investigation and I think it shows two things first being that up to this point, he wasn't a subject in the investigation. So this idea that the FBI, again I just I keep going back to this Deep State nonsense, that they're going after him he wasn't even on the investigation. And I think because inside the FBI talking to, to people familiar with what was going on at the time, is they weren't sure. They didn't know what his role was. And again it's a big step to add anyone to a case and so you want to be able to have those specific and articulable facts and as related to the president they didn't, they didn't have that information. Fast forward to May. We know that he had asked Jim Comey to drop the investigation into Michael Flynn. We know, that you know, there were this, this question as far as Trump Tower and what did the President know at that time about his son taking this meeting, again a lot of questions a lot of smoke there. And then at the moment that he decides to fire the FBI Director, the person who's leading the investigation into his campaign and a possible effort to undermine that investigation. Suddenly all this coming together, again a lot of smoke if you're inside the FBI, why is he acting in this way? Could it be that he is somehow complicit in this effort that we're still investigating? Boom, they add him to that investigation now he becomes a subject, and then that gets handed over to Robert Mueller just about 10 days later. 


Harry Litman [00:28:39] Is it your sense that these totally grave suppositions and possibilities have in some way kind of failed to inflame the public imagination or at least to the extent you would think, you know as you describe them, from within the culture of the FBI, you would think they might. That is, do you perceive a general public kind of shrugging of the shoulders on this stuff? And is it both frustrating, do you think to you and to members of the Bureau or how would you account for it?


Frank Figliuzzi [00:29:16]Yeah there's a couple of things going on with this. I think first, it's the classified nature of counterintelligence investigations that, has precluded all of the facts in this thing from coming out. Number one. So, number two we have the shaping of this Special Counsel inquiry as a criminal matter, not only by the Special Counsel, who felt that he needed to approach this from a criminal perspective, but now of course the narrative is being totally shaped by Attorney General Barr, who has said "We're, we're prosecutors. This is what we do we do criminal. We, and I find no criminal charges can be brought here." And, and, so the public has kind of shrugged their shoulders and said "Well, if there's no crime, then I guess we're okay." But that narrative does not serve us well when it comes to counterintelligence, because counterintelligence cases by and large do not end up with arrests and convictions or people in handcuffs. But rather, the whole goal of counterintelligence is to detect, deter, and defeat the efforts of foreign intelligence services and those working with them. So we're not there yet. I think so I think that's failed to properly capture the public attention because number one, highly classified. Nothing's come out yet, significantly. Number two, it's been, this whole thing's been defined as criminal in nature. And if we don't have criminal charges then we shouldn't worry. 


Harry Litman [00:30:52] Josh.


Josh Campbell [00:30:54] So I think the larger issue here, beyond this one investigation is twofold. First of which being you have the American people that are being manipulated. And I'll call it for what it is. There's been this ongoing campaign of attack against Robert Mueller, against the FBI, against the Department of Justice. Again, trying to bill them as acting in a corrupt manner. And myself and many others suspect that this is a political campaign because the President and his allies were afraid of where this investigation might go. And so there's that aspect. And to your point about the public, and this is the second aspect, is that they're being manipulated into not knowing what to believe. Again, you have the president and his base that are, they constantly hear that the President is a victim, that law enforcement is out of control. You have folks on the other side of the aisle who are looking and saying, "Well, Robert Mueller didn't come to a conclusion that the Trump campaign was complicit as it related to the Russians at least in a way that they could be prosecuted. And so they don't know what to believe. I think at the end of the day it's a disservice to the public, it's a disservice to national security, because the more gaslighting that takes place, the more the American people become numb to this, the less we're talking about the Russian threat, which will continue. This will continue into the 2020 election. We know that they're going to keep at it. We know the president won't criticize Vladimir Putin or Russia. So we know that they see that as a green light to continue in their efforts and again it's going to leave us less safe in my judgment as a result. Now the problem is is that if you're inside the FBI right now or the Justice Department the only way that you can actually counter a conspiracy theory is through transparency. You can't just come out and say "Ah, look there's no Deep State. Oh look this was predicated." You have to show your work, and this is why I agree with something that Frank said earlier as far as the looking at side the FBI. I talked to people inside the FBI who welcome an inspector general review into their Russia investigation who welcome Congress turning the place upside down and shaking it and see what comes out, again because their goal is public confidence. And if the American people understand exactly what the FBI was, was, was faced with and the actions that they took through a transparent review, I don't think it's going to show a group of criminals, I think it's going to show a group of patriots who saw intelligence threat and worked to counter it. 


Harry Litman [00:33:07] Great point. Now it's time to take a moment to explain some of the terms and relationships that you hear about in this podcast and on cable TV in a segment that we call Sidebar. 


Harry Litman [00:33:24] Today, we are thrilled to have on the show Jane Lynch. Jane is an incredibly talented actress author, singer and comedienne with more than 200 acting credits to her name. She starred as the delightfully devious Sue Sylvester on the hit TV series Glee. And as Sophie Lennon on The Marvelous Mrs. Maisel. She's also starred in films such as Wreck-It-Ralph, and The 40-Year-Old Virgin and of course, her unforgettable roles in Christopher Guest's ensemble comedies like Best in Show. 


Harry Litman [00:34:03] Today, Jane is going to tell us about the role of a grand jury and how a grand jury differs from a regular jury. 


Jane Lynch [00:34:16] What is a grand jury? And how is it grander than a regular jury? A grand jury is a group of citizens, traditionally 23, that investigates crimes and brings indictments which are bills of charges that begin prosecutions. Grand juries are impaneled and led by prosecutors who use the authority of the grand jury to subpoena documents and witnesses to investigate whether crimes have occurred. At the end of the investigation, the prosecutor will usually present a grand jury with an indictment. If the majority of the jurors vote to return a true bill, that means that the jury believes there is probable cause to believe that the individual committed the crime and should stand trial. The use of the grand jury dates back hundreds of years and was recognized in the Magna Carta in 1215. The framers of the Bill of Rights believed that grand juries served an important check on the powers of government, by requiring a vote of ordinary citizens before a defendant could be formally accused of serious crimes. 


Jane Lynch [00:35:12] The Fifth Amendment includes this protection: No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury. Grand juries typically sit for much longer than regular juries. Federal grand juries usually sit for 18 months, one day per week, and can be extended if needed. Grand juries are usually impaneled to investigate and if needed indict all serious crimes occurring during its tenure. But sometimes, if an investigation is particularly resource intensive, prosecutors will convene a special grand jury that works on that matter only. A grand jury is called "grand" because with 23 jurors, it's bigger than a regular jury. Regular juries are also called "petit juries" from the French word for small. So it is fair to say that a grand jury is usually 11 people grander than a regular jury. For Talking Feds, I'm Jane Lynch. 


Harry Litman [00:36:10] Thanks very much to Jane Lynch followed Jane on Twitter @JaneMarieLynch. You will not be disappointed. 


Harry Litman [00:36:19] But let's return to this incredibly illuminating discussion about counterintelligence investigations with somewhat of a closer focus, if necessarily, a little bit more speculative on what happens now. Let me start with the point that I think you made, or follows from what you made, Frank in the first segment, we will not necessarily know, isn't that correct, when this investigation ends, and with what actions or steps to address the risk or even whether the bureau feels that the risk has been fully addressed, right? At the end of the day, there might be, for the public a kind of a black hole? 


Frank Figliuzzi [00:37:07]Yeah. Here's, here's where the role of Congress, I think, becomes very important because even though as Assistant Director for Counterintelligence, I, it was not, it was not my favorite thing to do to go up to the Hill and brief the House and Senate Intelligence Committees on our cases. I think they're going to play a very significant role here in in helping decide what happens next. By that I mean you're absolutely right. Typically, the resolution of a counterintelligence case would never become public. But in this matter where it could be that the president and or his closest allies, friends, associates are still perhaps in the title of a CI case, this has to be... this has to... This requires tremendous oversight by House and Senate Intelligence and by all accounts, they have not yet received a briefing on this case. And just so you know...


Harry Litman [00:38:03] Even the Gang of Eight has not received their briefing?


Frank Figliuzzi [00:38:06]What I'm what I'm understanding is that neither the House nor Senate Intelligence Committee, and I think Adam Schiff confirmed this recently, has been briefed on developments in the counterintelligence investigation. So that needs to happen. The standard is that any significant counterintelligence case needs to be briefed, and updates to that case need to be briefed. Now whether that's happening very quietly behind the scenes, I hope it is, but that kind of oversight is necessary in order for us to get to the bottom of this and perhaps to have any hopes that the public will find out whether their President is in or out of the title of a CI case. 


Harry Litman [00:38:52] Wow. And so just I mean are there any bread crumbs that we can look at any any ways of trying to figure out where things currently stand and what sort of progress if any has been made. 


Josh Campbell [00:39:06] So, this is only going to be more frustrating, but no. And you know that's for a reason. The FBI conducts these investigations in secret, outside the public knowing for obvious reasons you wouldn't want them potential targets to know that they're being investigated. The sources and methods that were used in these investigations will continue on and be used in other investigations. So it's going to remain very opaque as it relates to the general public. I think that Frank is spot on though, when it comes to Congress needing to know exactly what's going on. I'll tell you this, having served there at FBI headquarters, Congress as much as they leak, that Gang of Eight can keep secrets. I know that. I know that, you know the many issues that they were briefed on... 


Harry Litman [00:39:45] So what is the Gang of Eight? 


Josh Campbell [00:39:46] So the Gang of Eight is a senior leadership inside the House and the Senate. You have the heads of the intelligence committees and the respective ranking members. You have the Majority and Minority Leader, the Speaker of the House and the Majority, Majority leader. And this is the group, again, of leaders inside Congress that the FBI, the CIA, other members of the Intelligence Committee and Department of Defense will regularly update on major investigations, major intelligence operations. Again, with the goal being oversight. You want to ensure, and we learned this from the 1970s, that law enforcement intelligence can't just do their own thing. They have to have congressional oversight. 


Josh Campbell [00:40:20] And so there's a system set up in place, this so-called Gang of Eight, where they will actually get briefed on issues of major interest. And so that does need to take place, although the public, you know, doesn't necessarily need to know all the ins and outs right now, because as this investigation continues I think it is, it is incumbent upon the Department of Justice and the FBI to make sure that these congressional overseers are actually up to speed on what's going on because otherwise all of that stops with the Justice Department. That stops with the attorney general if he gets to decide, that "No, we're going to sit on this information. We're not going to share it." Then we don't really know what's going on and those are obviously questions that we need answered. 


Harry Litman [00:40:57] And I mean let's just you know indulge the craziest science fiction, Manchurian candidate, you know, supposition and try to, you know overlay that on the normal pattern, when you have one rogue agent or whatever:  We learn in the investigation that Trump is a stone cold Russian Agent, bought and sold. The President of the United States. Can it really be that you know it well that will stay kind of secret and they'll just try to somehow, and you know given his position, how would you even try to neutralize such a threat? Given that that's the overall goal of the investigation, is not to you know, not to bring a case but actually try to neutralize the threat? 


Frank Figliuzzi [00:41:50]Oh Harry I, I've got... I, I remain the eternal optimist. And by that I mean that if indeed, there was that kind of smoking gun evidence, I have to believe that Bob Mueller, Christopher Ray, CIA director and maybe the DNI would march into Congress and say "We have a clear and present danger. We, we have, we have a nation being run by a foreign asset and we can't allow this to continue. Here's what we have." I think that extreme example you gave is unlikely to be the case because I do... 


Harry Litman [00:42:32] Yes. Yes, we hope. I just wonder what the process would be. 


Frank Figliuzzi [00:42:36]Yeah I do believe that would come out through, uh, briefing to Congress. But something less is quite likely, which is that we have a President who is somehow aligning himself with an adversary because of a personal or professional compromise or inclination that we can't explain. And that maybe the intelligence community has some answers to. There's, there's a glimpse of this in the Mueller report in the time taken by Mueller to delve into the Trump Tower Moscow project. It kind of in my, in my view those pages just kind of float there. There's not, there's not a whole lot of reason for the explanation in my mind, of the Moscow Tower project other than to say, "You know, we looked at this as a possible motivation for someone who has dollar signs in their eyes and may and may be inclined to act in his own self-interest." That, that part of the report still puzzles me. 


Harry Litman [00:43:46] Yeah. And recall that that we do know, because it was an open court, that Andrew Weissmann suggested that that was quote at the heart of the case. So, so let me pose to you John, a much less far fetched hypothetical, we learned in fact... 


Josh Campbell [00:44:00] Thank you. I'm glad Frank got that last question. 


Harry Litman [00:44:04] We learned in fact that you know there's some tangible financial vulnerability something you know that would be a concern. On the one hand that poses a kind of risk that you worry about, but it's also got a broader political impact that you know, you think, is that something the American people sort of need to be aware of? Or pass political judgment on? Or does Congress need to be etc. Is there even a vehicle for that becoming subject to a political judgment, and process? Or in fact, is everything kind of hermetically sealed here? And that could be uncovered in the investigation without it ever becoming a matter of public knowledge. 


Josh Campbell [00:44:54] Well this just shows the difficult position for law enforcement in the intelligence community, again speaking in this in this hypothetical, because the best way to stop an intelligence threat oftentimes as it relates to influence operations is inoculation, is to call it out. That's what we did with the Russians after their election interference. The intelligence community got together wrote a report and then publicly announced that, you know as President Obama was leaving office, to say "Look this is what they've done, we have to call it out.". 


Josh Campbell [00:45:22] And again the goal is to stop a threat like that from continuing. Now the reason why this is a difficult spot for law enforcement, is because under the hypothetical that you mentioned if the President, perhaps, is is corrupted by some kind of shady business dealings or some type of financial transaction as it relates to the Russians he wouldn't have had to actually do something wrong even if he was discussing doing something wrong or if there's any type of leverage that the Russians could have over him then that could be a potential obviously counter-intelligence threat. But if you're in the position of law enforcement what do you do with that information? 


Josh Campbell [00:45:52] You're not going to hold a press conference and call that out. Which I think we go back to Congress as the mechanism and the vehicle for really dealing with these issues. And it shows especially in this hyper partisan time you know you go back and look and I've done a lot of search on this for a book I'm writing on you look at the House Intelligence Committee and the Senate Intelligence Committee. They used to operate with such cohesion. They would check their party labels at the door as they walked into their sensitive compartment and information facilities to do their work. And it didn't really matter what party they were. That's all been destroyed. That's all changed. Again, which makes it very difficult for these agencies and even if they did want to bring something to the attention of either body, what would they do with that information? So I think it goes back to that that Gang of Eight we talked about, we have to have a Department of Justice that's willing to cooperate with Congress. We know that they're at odds right now over the Mueller Report. So I don't have a lot of hope that even if they the FBI wanted to brief Congress on something that that would get through this Department of Justice as we sit here. 


Harry Litman [00:46:51] Now we've we've talked about, I mean when we think of counterintelligence we normally think of a bigger role as, as Frank detailed in the first segment about for them for the Bureau. And in this, in these last few minutes we bandied about the names Chris Wray and Bill Barr. I wonder when it comes to certain decisions whom to brief what to brief how to conclude things are wrapped up and the like, what's the sort of both structural, you know on paper, but also actual practical roles between the, the head of the FBI Chris Wray and the attorney general Bill Barr?


Frank Figliuzzi [00:47:33]I think Chris Wray has established himself in a refreshing way, in an otherwise kind of sad time in our history, he's a bright spot in that, so far he's he seems to have indicated that he's going to speak the truth. He recently testified on the Hill, he has recently been interviewed and he's made no bones about the fact that the threat continues, that there is concern for the 2020 election. He's unafraid to say something that maybe, may not be popular with his boss or the administration. And I find that refreshing. 


Harry Litman [00:48:04] And Josh, I mean part of this is, also, the kind of day to day morale of people within the bureau who've taken real hits along with DOJ folks in the last few years. Do you have a sense, Chris Wray's sort of standing in the building, but particularly with the Bureau rank and file, and what's your sense of his sort of effectiveness overall in his role as kind of leader of the troops?


Josh Campbell [00:48:35] So he is certainly surprised people inside the FBI that I speak with and I agree with Frank that he's a bright spot in these dark times. And I say, he's surprised people because they weren't quite sure what to expect and they were actually bracing for impact. Again, you had the FBI Director James Comey who someone who was widely regarded inside the organization, even by people who didn't necessarily agree with all of his decisions, thought he was a good leader as the FBI survey showed. 


Josh Campbell [00:49:01] But what was interesting is so you had the president now firing him and the FBI didn't know what they were going to get next was the president going to install a crony was he going to put someone in there, you know it's similar to what Nixon did with Patrick Gray? You know, who never actually made it to become confirmed as FBI director, who was basically the henchmen of the of the president? We didn't get that. We got a principled public servant, someone who has stood up for the FBI, again has rejected this use of spying. Someone who is there understanding that his role in these times will be judged by how he defends his people. And so, I think that that's that's really been a breath of fresh air and something that was unexpected. 


Josh Campbell [00:49:39] I will say this though, although I just mentioned the bright spot, the next two years are going to be unlike anything we've seen as a country, certainly anything people inside the FBI have seen. The last two years have been terrible. Morale is in the tank. You have the President, the Commander in Chief, calling this organization corrupt. It's going to get much worse, because I expect and this is this collision of law enforcement and politics, that the President will be running on his victim narrative, that he's been the victim of out-of-control law enforcement and intelligence. They've robbed him of his presidency, we're going to hear that going forward and the reason why that's important is because for people like Chris Wray and others like him in government, who are there to step up for their people, they're going to have their work cut out for them. Because again we're going to see a political campaign against our Department of Justice and our institutions, that we just haven't seen. 


Harry Litman [00:50:27] Yeah. I think the mantra of investigate the investigators is likely to go on and that would have been something I would have assumed would have been squelched in a New York minute by Bill Barr. But, but who knows whether he'll, he'll indulge it. Uh, Frank do you have a similar thought? And you know any basic ideas about what the next two years hold both within the building and for the counterintelligence investigation in general? 


Frank Figliuzzi [00:50:56]Yeah I think for the counterintelligence investigation, let's not forget that the director can't unilaterally decide to go brief the Hill on the counterintelligence case. He has to give permission on what is going to brief from the Attorney General. This is just just the way it works in Washington. You don't go to the Hill without briefing your Masters first. And that would be the Attorney General. So, let's look for the real possibility that the Attorney General is going to say, "No, you can't brief the counterintelligence investigation to the Hill. They're going to have to subpoena it"  By the way they already have and he's going to claim some kind of classified exception or some kind of privilege to it. So look for that stand off to occur soon.


Harry Litman [00:51:36] It's time for our final segment, Five Words or Fewer, where we take a question from a listener and each of the Feds has to answer in five words or fewer. And after all the difficult and complicated questions from, fromm the last hour, we'll end with a softball of sorts. Frank, Josh in five words or fewer. What made you want to be an FBI agent? Josh.


Josh Campbell [00:52:04] Bringing justice to crime victims. 


Frank Figliuzzi [00:52:06]Bringing justice to the unjust. 


Harry Litman [00:52:09] And I'll answer this, why I became an AUSA I guess, and I can name that tune in four words or fewer: Doing the right thing. 


 [00:52:22] Thank you very much to Frank and Josh. And thank you very much listeners for tuning in to what I think was a really educational and enjoyable Talking Feds. 


Harry Litman [00:52:33] If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate and review this episode. You can follow us on Twitter, @TalkingFedsPod, to find out about future episodes and other Fed-related content. And you can also check us out on the web at 


Harry Litman [00:53:01] Submit your questions to, whether it's for "Five words or fewer" or general questions about the inner workings of the legal system and prosecutorial practice for our Sidebar segment. 


Harry Litman [00:53:17] Thanks for tuning in. And don't worry as long as you need answers the Feds will keep talking. 


Harry Litman [00:53:28] Talking Fed is produced by Jennie Josephson, Dave Moldavon. Anthony Lemos and Rebecca Lopatin. David Lieberman is our contributing writer. Production assistance by Sarah Philipoom. Thanks to Mark McLemore, Ashley Westerman, Annie Celsi and Corey Fujikawa for recording this episode. And special thanks to Jane Lynch for schooling us on grand juries. And of course thanks as always to the incredible Philip Glass who graciously lets us use his music. 


 [00:54:06] Talking Feds is a production of Dalito, LLC. 


Harry Litman [00:54:11] I'm Harry Litman. See you next time.