The Obama Administration’s Hypocritical Pretext for Spying on the Trump Campaign

As I argued in my weekend column, it is hard to imagine a more idle question than whether the Obama administration spied on the Trump campaign. Of course it did. If you want to argue the point, imagine what the professors, pundits, and pols would have said had the Bush administration run an informant against three Obama 2008 campaign officials, including the campaign co-chairman; any hair-splitting about whether that technically constituted “spying” would be met by ostracism from polite society.

There is, in addition, more evidence — at least, more public, verified evidence — that Stefan Halper was a spy for the FBI than that Carter Page was one for Russia. This is not a small point.

Spy vs. ‘Spy’

It has been credibly reported that Halper, a longtime source for the CIA and British intelligence, was tasked by the FBI in the Trump-Russia investigation to make contact with and get information from at least three Trump campaign officials. He even sought a role in the campaign from co-chairman Sam Clovis. Page, on the other hand, was the target of four FISA court surveillance warrants, which enabled the Justice Department and FBI to monitor him for a year, starting at the height of the 2016 campaign.

To obtain such a warrant under FISA (the Foreign Intelligence Surveillance Act of 1978), the FBI and Justice Department must convince a judge that there is probable cause to believe the target is an agent of a foreign power — in Page’s case, of Russia. As we’ve previously outlined (here, last section), because Page is an American citizen, the Obama administration had to have told the court that he was either: (a) “knowingly engage[d] in clandestine intelligence gathering activities for or on behalf of [Russia], which activities involve[d] or may [have] involve[d]” federal crimes; or (b) “knowingly engaged in any other clandestine intelligence activities for or on behalf of [Russia], that were undertaken “pursuant to the direction of an intelligence service or network of [Russia],” and that “involve[d] or [were] about to involve” federal crimes.

(See Section 1801(b)(2) of Title 50, U.S. Code. I am assuming it was not alleged that Page was knowingly engaged in sabotage, international terrorism, or the use of false identities, the alternative statutory grounds for claiming that a U.S. citizen is acting as an agent of a foreign power.)

Assuming the Obama administration told the FISA court that Page was a clandestine agent of Russia, I’d make two observations: First, the only publicly known allegations that Page was engaged in such clandestine activities come from the Steele dossier, and appear to be unverified.

Second, Page has never been charged with a crime, which would be odd if the FBI had been able to verify its FISA application claims — posited four times over a year of surveillance — that he was engaged in activities that appeared to be federal crimes. (We have not been permitted to see the FISA applications; I am assuming here that the Justice Department would not seek a FISA warrant, and the court would not grant one, unless the application addressed FISA’s requirements for showing an American to be an agent of a foreign power.)

To put the matter more succinctly: We know why it is claimed that Halper was a spy; we still do not know why it was claimed that Page was a spy.

To repeat previously covered ground, we know that Russian spies tried to recruit Page in 2013. Yet, it appears that he cooperated with the FBI and Justice Department in the prosecution of the spies. (The Justice Department used his information in the arrest complaint — here, pp. 12-13, paras. 32-33, referring to Page as “Male-1”.) The Russian spies, moreover, expressed contempt for Page, referring to him as “an idiot” in a monitored conversation. This would not seem to be a promising jumping-off point for any future recruitment efforts.

The Norm Against Political Spying

I want to be clear: I am not offended by the word spy. If Halper’s mission was righteous, the Justice Department and FBI should be proud that he was a spy. And if, on behalf of Russia, Page conducted clandestine anti-American activities that constituted felony violations of American law, I would enthusiastically support labeling him a spy and prosecuting him to the full extent of the law. I’d want any official who knew about and supported such traitorous activities to be removed from office and prosecuted.

But there are two things to bear in mind.

The first is that while the law liberally permits criminal investigators and intelligence officers to use informants, there are situations in which spying is resisted. Among the most important are those involving our politics, particularly elections. We have an important norm in this country against political spying — a matter of tradition, of democratic institutions, of constitutional principles, and of modern history’s Watergate chapter. The incumbent administration must not use its awesome counterintelligence, counterespionage, and law-enforcement powers against its political opposition absent compelling evidence of egregious misconduct.

So far, apologists for the Trump-Russia investigation have posited only reasonable suspicions of Russia sympathies, harbored by a handful of Trump campaign figures and implied by some of Trump’s campaign rhetoric. Reasonable suspicions are not trifles, but neither are they in the same ballpark as egregious misconduct.

The Context of American Policy on Post-Soviet Russia

That brings us to the second point: The question of what amounts to egregious misconduct in the context of Russia cannot be answered in a Trump vacuum. It must be informed by history.

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