At approximately 8 PM on Sunday, February 18, 2001, there was a knock on my front door.

At the time I was a Special Agent (SA) with the FBI, so imagine my shock when I opened the door and found the two top officials in the Division on my doorstep. I knew this couldn't possibly be good news, but they quickly sought to reassure me.

"Everything is all right, but Bob Hanssen has been arrested."

All right? Bob Hanssen was my brother in law, and a longtime counterintelligence (CI) official at FBIHQ, privy to a vast range of sensitive intelligence information. A "high Bureau official," as field agents jokingly referred to anyone at HQ.

"Arrested? For what?"

"Espionage," they said.

I searched for something to say: "For the Russians?"

"Yes."

"I think you'd better come in," I said.

There was a small room right just off my front door that I used as a library. I led them in, got them seated, and then said, a bit shakily:

"I suppose this goes back to what I related all those years ago," I ventured, referring to events that occurred in 1990.

That statement was met with blank stares. And so, I found myself backtracking to 1990. I explained that at that time I had approached the supervisor of the Russian CI squad to explain why I thought the Bureau should open an espionage investigation on Bob Hanssen. I had discussed it all with my wife the night before and had organized my thoughts around three salient points -- I wanted to be sure to present a coherent and strictly legally oriented case. Those three points were as follows:

I knew through family that Hanssen had told his wife, "We may retire in Poland." This had been stated at the height of the Cold War, 1985, at approximately the time when the FBI and CIA were shaken to their core by a series of disasters leading to dead sources and the defection of Edward Lee Howard to the Soviet Union. The idea that a senior CI agent would talk of retirement in a Warsaw Pact country could only lead to the gravest suspicions.

I had recently been told (in confidence) by a fellow agent that he had heard from a CI supervisor who had recently come out from HQ that there was a "major mole hunt" going on at HQ. If there was thought to be a "mole" in the FBI, I reasoned, a good place to start investigation might be with an agent who was contemplating retirement in an enemy country.

Again, through family, I had learned that Hanssen had been found to have a large unexplained cache of ... cash. For the times and in the family context, it seemed hard to explain.

These three factors, I argued to the supervisor, warranted opening an investigation on Hanssen. We went ‘round and ‘round, discussing it from different angles. I was clear that I knew this wasn't proof. I stuck to the point that it was sufficient "predication" -- sufficient basis -- to open an investigation. Whether that investigation should be a Preliminary or a Full Investigation wasn't the point, I maintained. It was simply that, in light of those three factors, an investigation to resolve those concerns was needed.

The supervisor ended up telling me that he would deal with it. Shortly later he told me that he had, in fact, "handled it."

That was the last I heard of the matter until that night in February, 2001 -- although over the years I did hear things that led me to suspect that some sort of investigation had actually been launched.

All this I related literally within minutes of the FBI officials entering my house.

Here's how the OIG report deals with my attempt to alert the FBI to a deadly threat:

In August 1990, Hanssen's brother-in-law, FBI Special Agent Mark Wauck, heard that Hanssen's wife Bonnie had found $5,000 in unexplained cash in Hanssen's dresser drawer. Wauck reported this and other incidents he found suspicious to a supervisor in the FBI's Chicago Field Office. Although Wauck and the supervisor now have significantly different recollections of their conversation, we believe that Wauck provided the supervisor with enough information to warrant some follow up. Instead, the supervisor readily dismissed Wauck's concerns, in part because there was no policy or procedure mandating that he pass the information on for analysis and possible investigation. (p. 12) [emphases added]

My point here is not to dredge up the past. Rather, my point is the importance of "predication," which is based on the principle that, in America, law enforcement doesn't simply "test" the citizenry at random. There must be an articulable reason for investigating a person.

"Predication" for CI investigations by the FBI is defined by the Attorney General Guidelines (AGG), and has recently become a keenly controverted topic, thanks to the OIG "FISA Report". IG Michael Horowitz states in the report that, in his estimation, the FBI had sufficient "predication" to open a Full Investigation into associates of the Trump campaign in 2016. US Attorney John Durham, who is investigating related matters from a criminal standpoint, publicly disagreed with that assessment, and Attorney General Bill Barr also took issue:

Durham: "Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened." Barr: "The Inspector General’s report now makes clear that the FBI launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken." [emphases added]

What this means is that there wasn't sufficient "predication" to even open an investigation of the Trump campaign, much less to engage in the intrusive electronic surveillance that the FBI conducted for month after month. It may be worthwhile to examine the FBI investigation, codenamed Crossfire Hurricane, in light of the Hanssen case and to compare the predication according to which, in one case, a Full Investigation on a presidential campaign was opened and, in the other case, no investigation at all was opened on one of the most damaging spies in US history.

Briefly, predication for such an investigation requires an "articulable factual basis" that "reasonably indicates" that something that constitutes a federal crime or a threat to the national security may exist. A reasonable person should be able to look at a statement of the known facts and say, yes, these facts give reason to believe that the crime or threat may exist. We may not have proof at this point, but it's reasonable to believe, based on facts that we're able to articulate, that something wrong is going on. It's not simply speculation.

IG Horowitz describes this standard for predication as establishing a "low threshold." While I understand his point in comparison with a standard such as "proof beyond a reasonable doubt," I would maintain that the standard for predication is not as easily met as IG Horowitz seems to believe -- nor should it be. What makes this standard more difficult than it may at first appear is the very difficulty of articulating actual facts that move you beyond mere speculation -- "this person may be a spy" -- to a reasonable belief. Ask yourself: What facts would you need to know to be able to say, I reasonably believe that this person is a spy? Are mere allegations enough?

I'm a lawyer by education and, at the time in question, had been engaged in CI work for years. I had received advanced training. For that reason, I was acutely conscious of the need to articulate actual facts that would convince reasonable and dispassionate persons -- but who also possessed CI training -- that Hanssen should be investigated. To this day I believe I made that case.

Why was nothing done? I believe an important factor was an organizational culture in the Bureau that fostered the attitude: Our people aren't the kind of people who do espionage against their own country. To accuse a fellow agent of espionage was, well, it just wasn't done. And, in fact, nothing is more destructive of a CI organization than a culture of baseless accusation. That realization is exactly why I was so careful in how I framed my concerns.

When we turn to Crossfire Hurricane, I was frankly stunned to learn that the supposed "predication" for that case opening was nothing more than bar chatter by a person who wasn't even well connected within the Trump campaign. As AG Barr put it: "Where I disagree with Mike [Horowitz], I just think this [predication] was very flimsy," ... "a comment made by a 28-year-old volunteer." The reasonableness of Barr's evaluation lies in this, that this bar chatter was the basis not merely for an investigation into the 28-year-old volunteer but, for practical purposes, into the Trump campaign as an entity.

What in the FBI's organizational culture had changed from 2001 to 2016? The Guidelines remained essentially the same, so what led to the different results? Was it random human incompetence, or was it -- as many believe -- political bias?

Most of us have at least some familiarity with the infamous Strzok/Page texts, their expressions of extreme disdain for Trump and, indeed, for Trump supporters generally. IG Horowitz has been characterized in the media as exonerating the FBI of acting out of bias in opening the Crossfire Hurricane investigation. In fact, it's not quite so cut and dried. While Horowitz did in fact state that he couldn't prove political bias, in his testimony before the Senate he stated that the FBI engaged in a series of acts that were so grossly abusive as to be "inexplicable" except as the product of either gross incompetence or bias.

The saying goes that the fish rots from the head. I spoke earlier of the common Bureau attitude that "we don't do espionage." Based on my experience I believe that the gross abuses that IG Horowitz has documented could only have happened within a certain organizational culture, and one that had reached a fairly developed articulation of its views. Without a leadership imbued with that mindset, I doubt that these abuses would have occurred. That mindset, I believe, has been fostered in academia and has gained a solid foothold in the Deep State and even the wider culture. Let me offer an example of the type of thinking that I'm describing.

The basic attitude of what Americans have come to call the Deep State is that government policy is too important to be left to politicians -- elected officials. We saw that attitude on full display throughout the House's Impeachment Theater, and especially in LTC Vindman's openly expressed pique at the President of the United States taking policy into his own hands, rather than embracing the policy of "the interagency."

A more nuanced version of that attitude can be found in the writings of Jack Goldsmith. Jack Goldsmith moves in rarefied circles. He's a Harvard Law professor. He has worked at the highest levels of the Department of Justice and he writes books and articles that important people read. He is both a senior fellow at the Hoover Institution at Stanford University and a co-founder of the Lawfare Blog along with Brookings fellow (and James Comey sidekick) Benjamin Wittes. He and his views are well known and respected among the lawyers who largely run our government.

Back in April of 2018 Professor Goldsmith wrote an article for The Guardian: The 'deep state' is real. But are its leaks against Trump justified?

It's an interesting question, and Professor Goldsmith strikes a cautionary pose in the subtitle: "Even the most severe critics of the US president should worry about this subtle form of anti-democratic abuse." But worrying about this abuse isn't the same as actually rejecting it. The nub of the article is that we live in "unprecedented" times. Could it be that these unprecedented times call for unprecedented measures?

Professor Goldsmith explains the lay of the land in Washington in refreshingly frank terms:

"America doesn’t have coups or tanks in the street. But a deep state of sorts exists here and it includes national security bureaucrats who use secretly collected information to shape or curb the actions of elected officials. "Some see these American bureaucrats as a vital check on the law-breaking or authoritarian or otherwise illegitimate tendencies of democratically elected officials. "Others decry them as a self-serving authoritarian cabal that illegally and illegitimately undermines democratically elected officials and the policies they were elected to implement.



"The truth is that the deep state, which is a real phenomenon, has long been both a threat to democratic politics and a savior of it. The problem is that it is hard to maintain its savior role without also accepting its threatening role. The two go hand in hand, and are difficult to untangle." [emphases added]

I think LTC Vindman could live with that, although he might disdain Professor Goldsmith's balancing of the Deep State's character as both threat and savior. For my part, I don't recall the Constitution saying anything about bureaucrats as part of our system of checks and balances, no unelected officials as national saviors.

Professor Goldsmith then goes on to set out what he apparently believed, as of April 2018, are statements of fact -- or at least statements of what reasonable people, such as himself, believe. In light of all we've learned from the Horowitz report, and what a healthy skepticism about the corrupt Deep State-MSM alliance should have taught long ago, Goldsmith's views are rather extraordinary in their naivete. It's important to understand, however, that what he's doing is describing a situation in which something in the nature of a Deep State coup could be justified. By the right people.

"The situation the leaks are a response to is itself extraordinary to the point of being unprecedented. The then acting attorney general of the United States, Sally Yates, believed that Flynn, the new national security adviser, was compromised by the Russians and vulnerable to blackmail, and so warned the White House, which seemed to take no steps in response to the information. "More broadly, a number of very odd circumstances suggested unusual and potentially corrupt connections between the Trump campaign and administration and the Russian government, about which the FBI had been conducting a counterintelligence investigation since the summer of 2016. "All of this came in the context of the unprecedented Russian DNC hack designed, our intelligence agencies tell us, to help Donald Trump win the election. And then once in office, Trump himself engaged in vicious and in many instances false attacks on the intelligence community and justice department investigators. "Do these unprecedented circumstances justify the unprecedented deep state leaks? "The lines crossed by the deep state leaks against Trump were thought to be absolute ones until 2017. But we have never faced a situation in which the national security adviser, and perhaps even the president of the United States, presented a credible counterintelligence threat involving one of our greatest adversaries." [emphases added]

But, just as Professor Goldsmith seems to be verging on an urbane sort of hysterical break -- fueled by fake news -- contemplating the Trumpian threat to our National Security State, he lapses back into a state of resignation. He sees the Deep State as the ultimate loser in its struggle against a president who would be president. But, he warns, the result of Trump's victory will be danger for our National Security in ways left unspecified:

"Even the most severe critics of Trump should worry about this subtle form of anti-democratic abuse. The big loser in all this will probably be the national security bureaucracy itself and, to the extent it is weakened, the security of the American people."

It's a remarkable vision and, I fear, well within mainstream thinking in the upper reaches of the Deep State. We've caught glimpses of this mindset from lesser figures -- Comey, Sally Yates, Col. Vindman. Professor Goldsmith, I believe, has articulated a view according to which these lesser figures could feel justified in allying themselves with a political party in order to secure, they would say, the nation's future security. Not to mention their own. For these people, working at the highest levels of the US government, cutting corners on "predication" is merely a means to that desirable end.

As for people like me, who thought predication was a serious matter of constitutional principle, I suppose their response, if they so deigned, would be something like: Predication is for chumps.

Photo credit: Aude

Mark Wauck is a retired FBI Special Agent who blogs on national security, philosophy, and religion at meaning in history.