In Senate testimony last week, Attorney General William Barr used the word “spying” to refer to the Obama administration, um, spying on the Trump campaign. Of course, fainting spells ensued, with the media-Democrat complex in meltdown. Former FBI Director Jim Comey tut-tutted that he was confused by Barr’s comments, since the FBI’s “surveillance” had been authorized by a court.
(Needless to say, the former director neglected to mention that the court was not informed that the bureau’s “evidence” for the warrants was unverified hearsay paid for by the Clinton campaign.)
The pearl-clutching was predictable. Less than a year ago, we learned the Obama administration had used a confidential informant — a spy — to approach at least three Trump campaign officials in the months leading up to the 2016 election, straining to find proof that the campaign was complicit in the Kremlin’s hacking of Democratic emails.
As night follows day, we were treated to the same Beltway hysteria we got this week: Silly semantic carping over the word “spying” — which, regardless of whether a judge authorizes it, is merely the covert gathering of intelligence about a suspected wrongdoer, organization or foreign power.
There is no doubt that the Obama administration spied on the Trump campaign. As Barr made clear, the real question is: What predicated the spying? Was there a valid reason for it, strong enough to overcome our norm against political spying? Or was it done rashly? Was a politically motivated decision made to use highly intrusive investigative tactics when a more measured response would have sufficed, such as a “defensive briefing” that would have warned the Trump campaign of possible Russian infiltration?
Last year, when the “spy” games got underway, James Clapper, Obama’s director of national intelligence, conceded that, yes, the FBI did run an informant — “spy” is such an icky word — at Trump campaign officials; but, we were told, this was merely to investigate Russia. Cross Clapper’s heart, it had nothing to do with the Trump campaign. No, no, no. Indeed, the Obama administration only used an informant because — bet you didn’t know this — doing so is the most benign, least intrusive mode of conducting an investigation.
Me? I’m thinking the tens of thousands of convicts serving lengthy sentences due to the penetration of their schemes by informants would beg to differ. (Gee, Mr. Gambino, I assure you, this was just for you own good . . .) And imagine the Democrats’ response if, say, the Bush administration had run a covert intelligence operative against Obama 2008 campaign officials, including the campaign’s co-chairman. Surely David Axelrod, Chuck Schumer, The New York Times and Rachel Maddow would chirp that “all is forgiven” once they heard Republicans punctiliously parse the nuances between “spying” and “surveillance”; between “spies” and “informants”; and between investigating campaign officials versus investigating the campaign proper — and the candidate.
The “spying” question arose last spring, when we learned that Stefan Halper, a longtime source for the CIA and British intelligence, had been tasked during the FBI’s Russia investigation to chat up three Trump campaign advisers: Carter Page, George Papadopoulos and Sam Clovis. This was in addition to earlier revelations that the Obama Justice Department and FBI had obtained warrants to eavesdrop on Page’s communications, beginning about three weeks before the 2016 election.
The fact that spying had occurred was too clear for credible denial. The retort, then, was misdirection: There had been no spying on Donald Trump or his campaign; just on a few potential bad actors in the campaign’s orbit.
It was nonsense then, and it is nonsense now.
The pols making these claims about what the FBI was doing might have been well served by listening to what the FBI said it was doing.
There was, for example, then-Director Comey’s breathtaking public testimony before the House Intelligence Committee on March 20, 2017. Comey did not just confirm the existence of a counterintelligence probe of Russian espionage to influence the 2016 election — notwithstanding that the government customarily refuses to confirm the existence of any investigation, let alone a classified counterintelligence investigation. The director further identified the Trump campaign as a subject of the probe, even though, to avoid smearing people, the Justice Department never identifies uncharged persons or organizations that are under investigation. As Comey put it:
“I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts . . .”
The FBI was spying, and it was doing so in an investigation of the Trump campaign. That is why, for over two years, Washington has been entranced by the specter of “Trump collusion with Russia” — not Page or Papadopoulos collusion with Russia. Comey went to extraordinary lengths to tell the world that the FBI was not merely zeroing in on individuals of varying ranks in the campaign; the main question was whether the Trump campaign itself — the entity — had “coordinated” in Russia’s espionage operation.
In the months prior to the election, as its Trump-Russia investigation ensued, some of the overtly political, rabidly anti-Trump FBI agents running the probe discussed among themselves the prospect of stopping Trump, or of using the investigation as an “insurance policy” in the highly unlikely event that Trump won the election. After Trump’s stunning victory, the Obama administration had a dilemma: How could the investigation be maintained if Trump were told about it? After all, as president, he would have the power to shut it down.
On Jan. 6, 2017, Comey, Clapper, CIA Director John Brennan and National Security Agency chief Michael Rogers visited President-elect Trump in New York to brief him on the Russia investigation.
Just one day earlier, at the White House, Comey and then–Acting Attorney General Sally Yates had met with the political leadership of the Obama administration — President Obama, Vice President Joe Biden and national security adviser Susan Rice — to discuss withholding information about the Russia investigation from the incoming Trump administration.
Rice put this sleight-of-hand a bit more delicately in the memo about the Oval Office meeting (written two weeks after the fact, as Rice was leaving her office minutes after Trump’s inauguration):
“President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia. [Emphasis added.]”
It is easy to understand why Obama officials needed to discuss withholding information from Trump. They knew that the Trump campaign — not just some individuals tangentially connected to the campaign — was the subject of an ongoing FBI counterintelligence probe. An informant had been run at campaign officials. The FISA surveillance of Page was underway — in fact, right before Trump’s inauguration, the Obama administration obtained a new court warrant for 90 more days of spying.
In each Page surveillance warrant application, after describing Russia’s espionage operations, the Justice Department told the court, “The FBI believes that the Russian Government’s efforts are being coordinated with Candidate #1’s campaign[.]” Candidate #1 was Donald Trump — now, the president-elect.
The fact that the Trump campaign was under investigation for collaborating with Russia was not just withheld from the incoming president; it had been withheld from the congressional “Gang of Eight.”
In his March 2017 House testimony, answering questions by Rep. Elise Stefanik (R-NY), then-director Comey acknowledged that congressional leadership was not told about the Trump-Russia probe during quarterly briefings from July 2016 through early March 2017, because “it was a matter of such sensitivity.” Let’s put aside that the need to alert Congress to sensitive matters is exactly why there is a Gang of Eight (comprised of bipartisan leaders of both chambers and their intelligence committees).
Manifestly, the matter was deemed too “sensitive” for disclosure because that would have involved telling Republican congressional leadership that the incumbent Democratic administration was using foreign counterintelligence powers to investigate the Republican presidential campaign, and the party’s nominee, as suspected clandestine agents of the Kremlin.
How to keep the investigation going when Trump took office? The plan called for Comey to put the new president at ease by telling him he was not a suspect. This would not have been a credible assurance if Comey had informed Trump that (a) his campaign had been under investigation for months, and (b) the FBI had told a federal court it suspected Trump campaign officials were complicit in Russia’s cyber-espionage operation.
So, consistent with President Obama’s instructions at the Jan. 5, 2017, Oval Office meeting, information about the investigation would be withheld from the president-elect. The next day, the intelligence chiefs would tell Trump only about Russia’s espionage, not about the Trump campaign’s suspected “coordination” with the Kremlin. Then, Comey would apprise Trump about only a sliver of the Steele dossier — just the lurid story about peeing prostitutes, not the dossier’s principal allegations of a traitorous Trump-Russia conspiracy.
This strategy did not sit well with everyone at the FBI. Shortly before meeting with Trump on Jan. 6, Comey consulted his top advisers about the plan to tell Trump he was not a suspect. In later Senate testimony, Comey admitted that there was an objection from one FBI official:
“One of the members of the leadership team had a view that, although it was technically true [that] we did not have a counterintelligence file case open on then-President-elect Trump[,] . . . because we’re looking at the potential . . . coordination between the campaign and Russia, because it was . . . President-elect Trump’s campaign, this person’s view was, inevitably, [Trump’s] behavior, [Trump’s] conduct will fall within the scope of that work.”
Note that Comey did not refer to “potential coordination” between, say, Carter Page or Paul Manafort and Russia. The director was unambiguous: The FBI was investigating “potential coordination between the Trump campaign and Russia.”
Perspicaciously, Comey’s unidentified adviser connected the dots: (a) because the FBI’s investigation focused on the campaign, and (b) since the campaign was Trump’s campaign, it was necessarily true that (c) Trump’s own conduct was under FBI scrutiny.
Then-director Comey’s reliance on the trivial administrative fact that the FBI had not written Trump’s name on the investigative file did not change the reality that Trump, manifestly, was the main subject of the “Crossfire Hurricane” investigation.
Remember last year’s hullabaloo over special counsel Robert Mueller’s demand to interview the president? What need would there have been to conduct such an interview if Trump were not a subject of the investigation? Why would Trump’s political opponents have spent the last two years demanding that Mueller be permitted to complete his probe of collusion and obstruction if it were not understood that the investigation — including the spying, or, if you prefer, the electronic surveillance, the informant sorties, and the information gathered by national-security letter demands — was centrally about Donald Trump?
That brings us to a final point. Congressional investigations have established that the Obama Justice Department and the FBI used the Steele dossier to obtain FISA court warrants against Page.
The dossier, a Clinton campaign opposition research project (again, a fact withheld from the FISA court), was essential to the required probable-cause showing; the FBI’s former deputy director, Andrew McCabe, testified that without the dossier there would have been no warrant.
So . . . what did the dossier say? The lion’s share of it alleged that the Trump campaign was conspiring with the Kremlin to corrupt the election, including by hacking and publicizing Democratic Party e-mails. This allegation was based on unidentified Russian sources whom the FBI could not corroborate; then-director Comey told Senate leaders that the FBI used the information because the bureau judged former British spy Christopher Steele to be credible, even though (a) Steele did not make any of the observations the court was being asked to rely on, and (b) Steele had misled the FBI about his contacts with the media — with whom Steele and his Clinton campaign allies were sharing the same information he was giving the bureau.
It is a major investigative step to seek surveillance warrants from the FISA court. Unlike using an informant (a human spy), for which no court authorization is necessary, applications for FISA surveillance require approvals at the highest levels of the Justice Department and the FBI. After going through that elaborate process, the Obama Justice Department and the FBI presented to the court the dossier’s allegations that the Trump campaign was coordinating with Russia to undermine the 2016 election.
To be sure, no sensible person argues that the government should refrain from investigating if, based on compelling evidence, the FBI suspects individuals — even campaign officials, even a party’s nominee — of acting as clandestine agents of a hostile foreign power. The question is: What should trigger such an investigation in a democratic republic whose norms strongly discourage an incumbent administration’s use of the government’s spying powers against political opponents?
The Obama administration decided that this norm did not apply to the Trump campaign. If all the Obama administration had been trying to do was check out a few bad apples with suspicious Russia ties, the FBI could easily have alerted any of a number of Trump campaign officials with solid national-security credentials — Rudy Giuliani, Jeff Sessions, Chris Christie. The agents could have asked for the campaign’s help. Instead, Obama officials made the Trump campaign the subject of a counterintelligence investigation.
That only makes sense if the Obama administration’s premise was that Donald Trump himself was a Russian agent.
Andrew C. McCarthy, a former federal prosecutor, is a contributing editor of National Review.