The standard for opening an assessment is quite low. It is explicitly less than “‘information or an allegation’ indicating the existence of . . . [a]n activity constituting . . . a threat to national security,” which is required to open a preliminary investigation. (DIOG 6.5) Opening an assessment requires only that there be an “authorized purpose” and a “clearly defined objective” for the assessment. In particular, the DIOG makes clear that an assessment is appropriate when “there is reason to collect information or facts to determine whether there is . . . a national security threat.” (DIOG 5.1; emphasis supplied). And as part of an assessment, the FBI is allowed to conduct interviews, including of the possible subject or target. (DIOG 18.5.6).
The attorney general and his minions are making the astounding argument that when the FBI—aware of extensive Russian interference in U.S. politics in order to benefit the Trump campaign—learned that the incoming national security advisor requested that Russia not respond to the sanctions that were imposed in response to that interference and then lied to other government officials about that, it could not even “collect information or facts to determine” whether this created a counterintelligence threat. This cannot be right. Even if the prior investigation into Flynn had been closed, which it had not, these circumstances at a minimum justified an assessment under standard FBI policy.
In fact, the department’s motion virtually concedes the point. It dismisses Flynn’s lies to Pence and Spicer by saying that “[h]ad the FBI been deeply concerned about the disparities between what they knew had been said on the calls and the representations of Vice President Pence or Mr. Spicer, it would have sought to speak with them directly, but did not.” But that would be a kind of investigative activity, and under the DIOG, either the FBI has a basis to investigate or it doesn’t. If the facts justified talking to Pence about Flynn, they justified talking to Flynn.
Of course, the bureau did not open an assessment of Flynn. But that’s because it didn’t need to—it already had open both the earlier counterintelligence investigation of him, which had not been closed, and the broader Crossfire Hurricane investigation into Russian influence. Interviewing Flynn was justified under either of those matters, and his lies about his activities were material to them.