Lawfare

Mike Pompeo Could Stop Robert Mueller in His Tracks

The director of the CIA has extraordinary influence over all counterintelligence investigations — and there are reasons to distrust his intentions.

CIA director Mike Pompeo during his confirmation hearing on Jan. 12. (Joe Raedle/Getty Images)
CIA director Mike Pompeo during his confirmation hearing on Jan. 12. (Joe Raedle/Getty Images)

Does the CIA have the right to deny special counsel Robert Mueller access to Russia-related information relevant to his investigation into the 2016 U.S. presidential election? And if so, should we be worried that CIA Director Mike Pompeo would seize on that right to protect President Donald Trump?

As a former federal prosecutor, I have worked on cases where the intelligence community denied permission to use evidence at trial, resulting in the inability to proceed on certain charges. In those cases, I accepted that the intelligence agency in question was acting in good faith to protect a source or method that was of higher priority than the individual charges. I increasingly worry that such a presumption wouldn’t be warranted for Pompeo’s CIA.

The Washington Post recently reported that Pompeo has distorted the intelligence community’s findings regarding Russian interference in the election. Pompeo stated that the intelligence community concluded that Russian meddling did not affect the outcome of the election. In fact, a report released by the intelligence community in January “made no judgment” on whether Russian interference affected the election, according to former Deputy CIA Director David Cohen, stating the question of outcome was outside the scope of inquiry by the intelligence community. Instead, the report disclosed that Russia leaked stolen emails and used social media to disrupt political discourse. The report concluded that Russia sought to help elect Donald Trump by sowing discord and harming public confidence in the American electoral system.

Maybe Pompeo made an honest mistake when he claimed Russian meddling did not affect the election’s outcome. But Pompeo’s comments could be an effort to spin the report in a way that minimizes its findings. Other reports have indicated that Pompeo issued a directive in August that those working on the Russia investigation at the CIA report directly to him.

This is a troubling sign for someone with as much power as Pompeo has as CIA director. Because Mueller’s investigation is at its core a counterintelligence investigation, Pompeo, a former Republican congressman from Kansas, could have extraordinary influence over what intelligence information may be used in any resulting criminal case.

Since the enactment of the Patriot Act, information that is collected for intelligence purposes may be shared with criminal investigators for use in court as long as the collection was lawful and a significant purpose of the collection was for intelligence purposes.

Additional barriers exist, however. Because intelligence information is classified, prosecutors must obtain both declassification and use authority. Only the owner of the information — the agency that produced the intelligence in question — can grant that permission. In many instances, that owner is the CIA. There are some procedures to use classified information at trial without declassification, notably the Classified Information Procedures Act, but use authority must always be granted before it may be used as a basis for an indictment.

There are good reasons for these restrictions. Using intelligence information in court can risk compromising intelligence equities at stake. Intelligence officials must sometimes choose whether to proceed with the case in open court or instead to protect the source or method of the intelligence information. Sometimes permission to use intelligence information is denied because the cost of compromising a source or collection technique is determined to be too high to justify the disclosure. The case consequently either proceeds without the particular evidence or, where alternative evidence is unavailable or insufficient, the criminal case is dropped.

Pompeo’s past record creates a situation where one might reasonably question whether any determination he makes about declassification or use authority was made solely for proper nonpolitical, national security purposes.

One could imagine a scenario, for example, in which Mueller has obtained intelligence information that supports a case of conspiracy between Russians and members of the Trump campaign to violate the law. That information may be crucial to proving the connection required to convict any defendants who are charged. The information would be admissible if it was collected lawfully and if Mueller could obtain permission from its owner. But if that owner is the CIA, then Pompeo could decide to deny permission to use the evidence. That could leave Mueller charging the case without the benefit of all available evidence or, even worse, with no charges at all.

This illustrates the critical importance of individuals like the CIA director remaining apolitical. By remaining above the partisan fray, the CIA director can preserve credibility in cases where difficult national security choices might also resolve to the benefit of the president or his compatriots. One can only hope that officials keep national security interests in mind when they weigh the protection of intelligence equities. In a case with stakes as high as this one, it’s fair to wonder whether Pompeo’s record qualifies him to discharge that awesome responsibility.

Barbara McQuade is a professor at the University of Michigan Law School and former U.S. attorney for the Eastern District of Michigan.


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