Law & the Courts

Spinning a Crossfire Hurricane: The Times on the FBI’s Trump Investigation

Republican presidential nominee Donald Trump speaks at a rally at High Point University in High Point, North Carolina, September 20, 2016. (Jonathan Ernst/Reuters)
The paper buries more than one lede.

If you’re a fading Baby Boomer, you’re faintly amused that the FBI code-named its Trump-Russia investigation “Crossfire Hurricane.” It’s an homage to the Rolling Stones golden oldie “Jumpin’ Jack Flash” — which, come to think of it, might just be a perfect handle for John Brennan, the former Obama CIA director whose specter hovers over each critical juncture of the case.

The young’uns may not believe it, but back before it was known as “classic rock,” you couldn’t just play your crossfire hurricane on Spotify. You had to spin it. Fittingly, that is exactly what the New York Times has done in Wednesday’s blockbuster report on the origins of the Trump-Russia probe.

The quick take on the 4,100-word opus is that the Gray Lady “buried the lede.” Fair enough: You have to dig pretty deep to find that the FBI ran “at least one government informant” against the Trump campaign — and to note that the Times learned this because “current and former officials” leaked to reporters the same classified information about which, just days ago, the Justice Department shrieked “Extortion! when Congress asked about it.

But that’s not even the most important of the buried ledes. What the Times story makes explicit, with studious understatement, is that the Obama administration used its counterintelligence powers to investigate the opposition party’s presidential campaign.

That is, there was no criminal predicate to justify an investigation of any Trump-campaign official. So, the FBI did not open a criminal investigation. Instead, the bureau opened a counterintelligence investigation and hoped that evidence of crimes committed by Trump officials would emerge. But it is an abuse of power to use counterintelligence powers, including spying and electronic surveillance, to conduct what is actually a criminal investigation.

The Times barely mentions the word counterintelligence in its saga. That’s not an accident. The paper is crafting the media-Democrat narrative. Here is how things are to be spun: The FBI was very public about the Clinton-emails investigation, even making disclosures about it on the eve of the election. Yet it kept the Trump-Russia investigation tightly under wraps, despite intelligence showing that the Kremlin was sabotaging the election for Trump’s benefit. This effectively destroyed Clinton’s candidacy and handed the presidency to Trump.

It’s a gas, gas, gas!

It’s also bunk. Just because the two FBI cases are both referred to as “investigations” does not make them the same kind of thing.

The Clinton case was a criminal investigation that was predicated on a mountain of incriminating evidence. Mrs. Clinton does have one legitimate beef against the FBI: Then-director James Comey went public with some (but by no means all) of the proof against her. It is not proper for law-enforcement officials to publicize evidence from a criminal investigation unless formal charges are brought.

In the scheme of things, though, this was a minor infraction. The scandal here is that Mrs. Clinton was not charged. She likes to blame Comey for her defeat; but she had a chance to win only because the Obama Justice Department and the FBI tanked the case against her — in exactly the manner President Obama encouraged them to do in public commentary.

By contast, the Trump case is a counterintelligence investigation. Unlike criminal cases, counterintelligence matters are classified. If agents had made public disclosures about them, they would have been committing crimes and violating solemn agreements with foreign intelligence services — agreements without which those services would not share information that U.S. national-security officials need in order to protect our country.

In the scheme of things, though, the problem is not that the FBI honored its confidentiality obligations in the Trump case while violating them in the Clinton case. The scandal is that the FBI, lacking the incriminating evidence needed to justify opening a criminal investigation of the Trump campaign, decided to open a counterintelligence investigation. With the blessing of the Obama White House, they took the powers that enable our government to spy on foreign adversaries and used them to spy on Americans — Americans who just happened to be their political adversaries.

The Times averts its eyes from this point — although if a Republican administration tried this sort of thing on a Democratic candidate, it would be the only point.

Like the Justice Department and the FBI, the paper is banking on Russia to muddy the waters. Obviously, Russia was trying to meddle in the election, mainly through cyber-espionage — hacking. There would, then, have been nothing inappropriate about the FBI’s opening up a counterintelligence investigation against Russia. Indeed, it would have been irresponsible not to do so. That’s what counterintelligence powers are for.

But opening up a counterintelligence investigation against Russia is not the same thing as opening up a counterintelligence investigation against the Trump campaign.

The media-Democrat complex has tried from the start to conflate these two things. That explains the desperation to convince the public that Putin wanted Trump to win. It explains the stress on contacts, no matter how slight, between Trump campaign figures and Russians. They are trying to fill a gaping void they hope you don’t notice: Even if Putin did want Trump to win, and even if Trump-campaign advisers did have contacts with Kremlin-tied figures, there is no evidence of participation by the Trump campaign in Russia’s espionage.

At the height of the 2016 presidential race, the FBI collaborated with the CIA to probe an American political campaign.

That is the proof that would have been needed to justify investigating Americans. Under federal law, to establish that an American is acting as an agent of a foreign power, the government must show that the American is purposefully engaging in clandestine activities on behalf of a foreign power, and that it is probable that these activities violate federal criminal law. (See FISA, Title 50, U.S. Code, Section 1801(b)(2), further explained in the last six paragraphs of my Dec. 17 column.)

But of course, if the FBI had had that kind of evidence, they would not have had to open a counterintelligence investigation. They would not have had to use the Clinton campaign’s opposition research — the Steele dossier — to get FISA-court warrants. They would instead have opened a criminal investigation, just as they did on Clinton when there was evidence that she committed felonies.

To the contrary, the bureau opened a counterintelligence investigation in the absence of any (a) incriminating evidence, or (b) evidence implicating the Trump campaign in Russian espionage. At the height of the 2016 presidential race, the FBI collaborated with the CIA to probe an American political campaign. They used foreign-intelligence surveillance and informants.

That’s your crossfire hurricane.

NOW WATCH: ‘Rand Paul Wants Answers On The CIA Possibly Spying On Donald Trump’

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