“Spygate could be one of the biggest political scandals in history!” President Donald Trump tweeted last week in his ongoing effort to accuse the FBI of unfairly targeting him. However, the controversy over the Bureau’s use of a confidential human source to investigate the Trump campaign’s possible collusion with Russia is, as the president likes to say, #fakenews.
During the Obama administration, the Justice Department routinely used such “spy” tactics to investigate Democratic campaigns and politicians. But that doesn’t mean Trump’s allegation won’t work in his favor. Over the past two years, he and his allies have routinely coerced concessions from the Justice Department by using allegations, innuendo and conspiracy theories. Unless the Department of Justice takes a firmer stand against political interference, it will only continue.
The revelation that the FBI used a confidential source to help investigate Russia’s contact with the Trump campaign has led the president to argue that the Obama administration was spying on him for “political reasons and to help Crooked Hillary win.” But the tactics Trump is decrying are standard procedure when undertaking a covert investigation into campaign malfeasance or public corruption.
During the Obama years, my colleagues in the FBI and at the U.S. Attorney’s Office in Connecticut were conducting a campaign finance investigation into the congressional campaign of Chris Donovan. Donovan was the Democratic speaker of Connecticut’s state house. The investigators “flipped” a corrupt union official who then went on to make secret recordings of other targets for the Bureau. The investigation also introduced an undercover FBI agent who posed as an investor in a tobacco shop and secretly recorded phone calls and face-to-face conversations with Donovan’s congressional fundraiser. While gathering evidence, agents went so far as to stake out the congressional nominating convention.
And this was not an isolated incident. All over the country, federal investigations of corrupt political activity used these undercover “spy” techniques against Democrats during the Obama administration. In 2009, the FBI arrested the Democratic mayor of Hoboken, Peter Cammarano III, for taking bribes in exchange for real estate development promises. In that case, the FBI used an undercover informant who posed as a corrupt developer to obtain evidence that Cammarano was accepting illegal campaign contributions. In 2013, a federal investigation initially targeted the Democratic mayor of San Diego, Bob Filner. Although Filner was never charged, undercover recordings were made of numerous political players and charges were brought against a foreign businessman who sought to influence American elections. Undercover agents were also used to investigate the Democratic deputy attorney general in Kentucky. These tactics – which have also been used to investigate Republicans – are a common way to establish evidence for white-collar prosecutions, cases that often turn on the hard-to-prove issue of intent.
In all of these cases, investigators never took these moves lightly. They could only be employed once a case has been sufficiently “predicated” – that is, once there is an independent basis to believe that a crime may have been committed. Agents and prosecutors in the field must consult with the Department of Justice’s Public Integrity Section in Washington, D.C., about almost all public corruption investigations and cases involving federal campaign finance laws must be directly approved by the section. Attorneys in the central office act as a bulwark to ensure that agents in the field aren’t targeting politicians they simply don’t like. Under these procedures, agents cannot create predication by poking around campaigns on their own – it must originate with an independent source. In these cases, senior political appointees are unaware of the granular details of cases – such as whether or not an informant is being used to conduct the investigation. While the Russia investigation began as a pure counterintelligence operation following different – and largely classified – guidelines, the buffer between political interference and day-to-day operations remains largely the same. Former Director of National Intelligence James Clapper made clear on CNN that he was not contemporaneously aware of the use of the informant, nor did he know of his identity. Just as in traditional criminal cases, these “strict rules and protocols” are, according to Clapper, “standard procedure.”
Moreover, the accusation of partisan meddling by the Obama administration is further belied by the aggressive indictments that the Justice Department filed against Democratic politicians. During that time, prosecutors brought cases against Sen. Robert Menendez (D-N.J.) and former presidential candidate John Edwards – both Democrats. The cases were difficult and prosecutors ultimately lost both. But their willingness to bring such cases is a tribute to the Justice Department’s nonpartisan ethos and a reminder of the importance of impartiality in the criminal justice system. This ethos was evident in the high-profile prosecutions of Republican politicians during the Bush years and can be seen in the commitment shown today by Deputy Attorney General Rod Rosenstien and Special Counsel Robert Mueller – both Republicans – to fully investigate and prosecute the Russia probe. As Clapper indicated, federal investigators have standard procedures to evaluate the propriety of their actions that help keep individual cases unaffected by the political moment.
While the evidence weighs heavily against Trump’s allegations that political bias was and is motivating the Justice Department, there is little reason to believe that this will be sufficient to stop him from successfully tarnishing the integrity of the Russia investigation. Trump and his allies have had remarkable success using baseless accusations to bully DOJ officials into taking actions they would ordinarily avoid. Since Trump entered the race for president, the Justice Department has repeatedly tried to be attentive to the criticisms lodged against it by right wing factions, whether or not those criticisms were well-grounded, only to make matters worse.
After former President Bill Clinton met with then-Attorney General Loretta Lynch on a plane on a runway in Arizona, Trump fanned the flames of conspiracy by tweeting that the meeting was “probably initiated and demanded by Hilary.” He went on to ask, “Does anybody really believe that meeting was just a coincidence?” Eventually, Lynch was forced to all but remove herself from the Hillary Clinton email inquiry, saying she would accept whatever recommendation was given to her by the FBI. This, in turn, set the stage for then-FBI Director James Comey to make his infamous announcement when he closed the Clinton investigation in July 2016. During his remarks, Comey took pains to make clear that he thought Clinton had been “careless,” but that her conduct wasn’t criminal. The statement broke with Justice Department practice of not commenting on cases in which no criminal charges are filed. The move was extremely unusual – an obvious effort to placate Trump allies by acknowledging their concerns.
It didn’t work.
If it served his political purpose, Trump berated the FBI director and Comey’s statements played right into his hands. “FBI director said Crooked Hillary compromised our national security. No charges. Wow! #RiggedSystem,” Trump tweeted on July 5, 2016. These allegations dogged Comey for months. When the FBI reopened the Clinton investigation because new emails were found on former Democratic congressman Anthony Weiner’s computer, Comey chose to inform Congress immediately, rather than wait until after the election, and Lynch did not stop him. Trump welcomed the move. Speaking to supporters in Grand Rapids, Michigan, Trump said, “I tell you what, what he did, he brought back his reputation. He brought it back.”
But again, the move broke with DOJ practice of not taking public action on cases involving politicians too close to an election. It was an action motivated by a fear that following the normal protocol would give DOJ’s critics ammunition to claim political bias. The Justice Department’s standing rule was in place to prevent criminal authorities from accidentally swaying an election, but some political analysts think Comey’s letter to Congress may have done just that. When Comey announced again that no charges would be brought against Clinton, Trump immediately turned on him.
Once in office, Trump coaxed an unusual memo out of Deputy Attorney General Rod Rosenstein, which the White House then used as pretext to fire Comey. Rosenstein became so compromised by the situation, he was forced to appoint a special counsel to give additional independence to the Russia investigation. Since then, Trump allies in Congress have forced Rosenstein to share unusual amounts of information with them. Most recently, amidst allegations of “Spygate,” Congress received additional briefings on the FBI’s use of a confidential informant. Now, Rudy Giuliani, Trump’s personal lawyer, is calling for the same briefing for the president himself. This may seem like a ridiculous request for the attorney of a subject of an investigation to make, but Trump’s success at forcing concessions from the Justice Department gives him reason to try.
From the fascistic “lock her up” chants to the White House’s ongoing hostility to federal investigators probing the president’s campaign, open criminal investigations have become political in previously unheard of ways. The president has decried standard investigatory tactics, painting them as partisan tools wielded to harm his political prospects. This is not only untrue, it does a disservice to the Justice Department’s efforts across multiple administrations to insulate sensitive investigations from partisan meddling. DOJ officials have tried to adapt to these accusations, but their efforts have often only compounded the problem. “Spygate” may be an invented controversy but it is a useful one for the president in his effort to undermine federal law enforcement. To blunt its power, the Justice Department must refuse to make any more concessions to Trump and his team. The president has changed the playbook but appeasement is not working. It should stop.