The New York Times reported on May 16 that the FBI had used national security letters and a “top secret” source to infiltrate the 2016 Trump presidential campaign, as part of its “investigation into the Trump campaign’s ties to Russia”—ties that, if proven, would presumably be criminal in nature.
But the media and politicians frequently refer to the subject as an investigation into “Russian meddling” in the 2016 election.
The article itself called it “a major national security case” and, later, “the Russia case”—thus, in essence, a counterintelligence matter. Mary McCord, a Justice Department national security prosecutor and certainly an expert in such matters, refers to the case as “a counterintelligence investigation.”
Which is it, criminal or counterintelligence? And why does this matter?
The distinction is critical. In 1976, the Department of Justice, under the direction of Attorney General Edward Levi, promulgated the Attorney General Guidelines. These were comprehensive, encyclopedic instructions regarding all aspects of all classes of investigations with which FBI employees, including special agents, analysts, and lawyers, may be involved. The guidelines cover national security (encompassing foreign counterintelligence), criminal, and terrorism investigations.
But by routinely characterizing the topic both ways, journalists and politicians cloud the public’s understanding of the true nature of the investigation. Worse, this dual description makes it difficult to determine which set of rules the investigators are obliged to follow: those that govern criminal investigations, or those applicable to foreign counterintelligence (FCI) investigations.
FCI investigations can be initiated at a lower bar of probable cause than criminal investigations, because FCI investigations typically do not result in criminal prosecutions; thus, the protections guaranteed to individuals by the Bill of Rights are less rigorously applied.
Utilizing national security letters and Foreign Intelligence Surveillance Act (FISA) warrants, investigators and informants gather intelligence, and not necessarily evidence. The intel can then be used for countermeasures, such as expelling professional spies working under diplomatic cover, including Russian consular officials who are in reality Russian intelligence agents.
What has emerged as being extraordinarily ambiguous is the underlying nature of the many investigations swirling around the 2016 Republican presidential campaign. The investigative tools utilized by the government would suggest that it is an FCI investigation. But mixed in with the intel theme are both a special counsel and the U.S. Attorney of the Southern District, who by definition are seeking to unearth criminal activity and bring the wrongdoers to justice.
Have the standards for FCI investigations been utilized to circumvent the stricter standards required by the Constitution—as delineated in the Attorney General Guidelines—in order to provide an appearance of legitimacy to what would ordinarily have been unjustified, unauthorized, and potentially illegal uses of the FBI’s extensive array of fact-finding tools?
Have the investigators first investigated, and then used, the results as the required “probable cause” to proceed with criminal investigations? It is well-established jurisprudence that probable cause comes first, hence justifying subsequent law enforcement activity. Otherwise, prosecutors and investigators would be free to engage in what the courts call “fishing expeditions,” that is, trolling for criminal subjects.
The May 16 article states that “relying on FBI information and Mr. Steele’s, prosecutors obtained court approval to eavesdrop on Mr. [Carter] Page,” referring to former British spy Christopher Steele—who, the newspaper concedes, was paid by the Democrats, but is still “highly credible” in its estimation. These national security letters and the FISA warrants are tools from the counterintelligence arsenal–not those of the criminal investigator–and they require a minimal articulation of facts to meet the lower bar of probable cause.
Compounding the misuse of the AG guidelines for FCI cases in order to develop criminal cases is the use of selective leaks–The New York Times and The Washington Post articles are replete with references to information provided by “current and former law enforcement officials” and “people familiar with the matter,” thereby developing in much of the public the impression that Trump campaign officials engaged in criminal dialogue with Russian spymasters, and that prosecutions may be inevitable.
Democratic legislators point frequently to the number of indictments and convictions obtained by special counsel Robert Mueller, to remind the public that where there is smoke, there must be a conflagration. Nevermind that the cases primarily involve money laundering, fraud, and misstatements to federal officials for unrelated matters.
Crimes, yes. But crimes encompassed by the special counsel’s mandate? Not likely–though we can’t be sure, because the Department of Justice has chosen not to share this essential information with the American people—evidence that its managers may have more in common with their counterparts in Russia than they realize.
There was additional obfuscation on May 18 when a New York Times headline proclaimed that the “FBI Used Informant to Investigate Russia Ties to Campaign, Not to Spy.”
Now that is a fine distinction, indeed. What exactly does an informant do, other than to spy? An informant’s job is the same as that of an undercover agent: to gain the confidence of others, gather information, intelligence or evidence, and report back. The Cambridge Dictionary defines a spy as “a person employed by a country or organization to secretly gather and report information about another country or organization.” Thus, this informant was, by definition, a spy.
According to The New York Times, the informant cultivated relationships with Trump campaign volunteers George Papadopoulos and Carter Page to lure then into disclosing information. The newspaper then congratulated itself for protecting the non-spy informant’s identity–after describing him as “an American academic who teaches in Britain ... [who] is well-known in Washington circles,” and providing the names of individuals the non-spy met with. That should protect his identity for as long it takes one to read the article. This, regarding an informant whose anonymity is deemed so critical that, according to The Washington Post, “the FBI has been working over the past two weeks ... to lessen any danger to associates if the informant’s identity becomes known.”
The notion that an investigation, whether FCI or criminal, would be launched by the “surprising” news that the Russians were meddling in an election defies credulity. As described in former KGB General Oleg Kalugin’s memoirs, the Russians have been actively meddling in U.S. elections since virtually the founding of the Soviet Union. Kalugin, as a KGB boss in New York and in Washington, oversaw Soviet interference in our electoral process in the 1960s and ‘70s.
American politicians, Department of Justice officials, and media representatives who profess to be shocked and surprised by the behavior of the Russians in 2016 are being, at best, disingenuous.
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