Former FBI agent Andrew McCabe testified under oath about the 2016 Russia probe before the Senate Judiciary Committee yesterday. Committee Chair, Senator Lindsey Graham (R-SC) has long promised to bring in McCabe and others involved in the investigation to review testimony and findings from the Mueller and the Inspector General Horowitz reports. The hearing had been postponed in September due to Coronavirus concerns.

Mr. McCabe defended decisions to open the Crossfire Hurricane investigation but admitted that errors were made in the applications for the wiretap of former campaign aide Carter Page. The Justice Department report called “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation” found that there was insufficient “probable cause to believe that Page was acting as an agent” of the Russian government.

During his opening statement, McCabe testified the following:

“Let me be very clear. We did not open a case because we liked one candidate or didn’t like the other one. We did not open a case because we intended to stage a coup or overthrow the government…We opened a case to find out how the Russians might be undermining our election. We opened the case because it was our obligation and our duty to do so. We did our job.”

With regard to the errors, McCabe stated the following:

“DIOG’s review of four FISA applications and other aspects of the FBI’s Crossfire Hurricane investigation details a significant number of errors and failures related to the FISA applications in this case. I agreed to be interviewed in connection with the IG’s investigation and I have reviewed the report. I was shocked and disappointed at that the errors and mistakes that the OIG found. To me, any material misrepresentation or error in a FISA application is unacceptable. Period. The FBI should be held to the standard of scrupulous accuracy that the court demands. FISA remains one of the most important tools in our country’s efforts to protect national security. The FBI is the custodian of that tool. I fully support every effort to ensure the FBI’s use of FISA maintains that high standards that the court and the American people demand and deserve.”

Kevin Clinesmith is the only one prosecuted for criminal behavior in the FBI during the FBI Crossfire Hurricane Investigation. When asked by Senator Graham whether “anyone from the Trump campaign [wound] up being prosecuted for colluding with the Russians,” Mr. McCabe pivoted and instead noted that “it was [his] understanding [from] the results of the Mueller investigation that no one was prosecuted for criminal conspiracy involving that activity with [Crossfire Hurricane.]” 

In her opening remarks, Senator Feinstein (D-CA) justified the Crossfire Hurricane investigation by reminding everyone that Special Counsel Robert Mueller “concluded that there was foreign interference in the 2016 election. He found that Russia interfered in a sweeping and systematic fashion. He also uncovered numerous contacts between members of the Trump campaign and individuals linked to Russia and he determined that the campaign knew about, welcomed and expected it would benefit  electorally from Russia’s interference.” She continued, saying that the bipartisan Senate Intelligence Committee report, on which she sits, found evidence of involvement with the Russians, citing former Campaign manager Paul Manafort who presented a “grave counterintelligence threat.”

However, Feinstein also cited the report by Inspector General Michael Horowitz, stating that Horowitz found that an investigation of Russian interference and the Trump campaign’s ties to Russia was “justified” but that he also concluded that “there was no evidence that the bias impacted the Bureau’s work.”  She continued to say that none of the 14 witnesses provided evidence of FBI bias, concluding that it is “time to turn the page on Crossfire Hurricane.”

Among the more notable exchanges were those between Senators Ted Cruz (R-TX) and Senator John Kennedy (R-MS) both referred to the predicate and basis for the various pieces of the investigation. Senator Kennedy, however, spoke about the significant damage done to the reputation of the FBI caused by the conduct of its employees. Both challenged Mr. McCabe in his characterization of some of the details of the investigation. McCabe maintained that, other than evidence of criminal activity by former FBI attorney Kevin Clinesmith, who altered an email, thus falsifying a document used for the FISA application of Carter Page, the investigation was done by the book.

During his questioning, Senator Cruz referred to the General Michael Flynn memo which concerned Crossfire Razor, a code name for the Flynn investigation. Crossfire Razor was a subset of the Russia investigation that was used to “keep the Crossfire Hurricane investigation open” despite the fact that there was “no derogatory information” there and the FBI counterintelligence agents issued a memo recommending it be closed. He asked McCabe who signed off on the continuation of the investigation and whether he signed off on it because of the Logan Act. McCabe denied continuing it based on the Logan Act but, said he supported keeping the Russian investigation open because he was concerned that “General Flynn was having inappropriate contacts with Russia.”

The investigation of Flynn, who had been appointed as the future National Security Advisor to President Trump, was opened because of his phone call with Kislyak and other foreign leaders. Cruz’s probe centered on the Logan Act because it referred to General Flynn’s conversations with former Russian senior diplomat Sergey Kislyak and other foreign leaders during the transition to the Trump administration. During transitions, National Security Advisors routinely contact foreign leaders to discuss general plans and the state of affairs at the time. It was found that Flynn did nothing wrong. The Logan Act is “a single federal statute making it a crime for a citizen to confer with foreign governments against the interests of the United States. Specifically, it prohibits citizens from negotiating with other nations on behalf of the United States without authorization.” 

When pressed about whether the predicate for investigating Flynn was because of their suspicion that General Flynn had violated the Logan Act, McCabe repeatedly seemed to avoid actually naming the interaction as a violation of the Logan Act even though he continued to refer to the calls with Russia as exactly that. The Logan Act has only been used once in recent history in “1975, Senators John Sparkman and George McGovern were accused of violating the Logan Act when they traveled to Cuba and met with officials there.” Cruz seemed to be especially irritated as he pointed out the reports that the Biden campaign had already started to contact foreign leaders as a part of their transition, even though Biden has not yet been elected. Ironically, it was Biden who raised the issue of using the Logan Act against Flynn.

While Senator Kennedy grilled McCabe about the seemingly flimsy basis for the Russian investigation, he, more importantly, addressed the reputational damage caused by the conduct of the agency at a time in our country when the American people are experiencing profound distrust in its institutions.

“Do you have any idea, Mr. McCabe, I don’t think Mr. Comey does. do you have any idea how badly you and your colleagues have hurt the FBI? I mean the premier law enforcement agency in all of human history, and it was just a handful of you, and now when the average American gets a knock on his or her door, the FBI needs to talk to you. At least half of them are thinking, Oh my gosh, is the agent a Republican or Democrat. They probably know my party affiliation. You have any idea how much damage you’ve done?”

Despite substantial evidence of biased and improper behavior, Mr. McCabe denied responsibility for that perception saying those perceptions were caused by“politicized” and “baseless” investigations and not on the actual conduct of the FBI:

“I never took any action to undermine our effectiveness, undermine our oath to this constitution and the American people, and the work that we did for the FBI. I deeply regret how politicized the FBI has become in light of the rhetoric and the relentless attacks levied upon it over the last four years. And I have great faith that my former colleagues will continue to do their work and ignore those sorts of baseless attacks.”