Friday, June 01, 2018

Investigating and Spying on the Trump Campaign

NationalReview |  Gowdy’s fire truck pulled into Fox News Tuesday night for an interview by Martha MacCallum. An able lawyer, the congressman is suddenly on a mission to protect the Justice Department and the FBI from further criticism. So, when Ms. MacCallum posed the question about the FBI spying on the Trump campaign, Gowdy deftly changed the subject: Rather than address the campaign, he repeatedly insisted that Donald Trump personally was never the “target” of the FBI’s investigation. The only “target,” Gowdy maintains, was Russia.

This is a dodge on at least two levels.

First, to repeat, the question raised by the FBI’s use of an informant is whether the bureau was investigating the Trump campaign. We’ll come momentarily to the closely connected question of whether Trump can be airbrushed out of his own campaign — I suspect the impossibility of this feat is why Gowdy is resistant to discussing the Trump campaign at all.

It is a diversion for Gowdy to prattle on about how Trump himself was not a “target” of the Russia investigation. As we’ve repeatedly observed (and as Gowdy acknowledged in the interview), the Trump-Russia probe is a counterintelligence investigation. An accomplished prosecutor, Gowdy well knows that “target” is a term of art in criminal investigations, denoting a suspect who is likely to be indicted. The term is inapposite to counterintelligence investigations, which are not about building criminal cases but about divining and thwarting the provocative schemes of hostile foreign powers. In that sense, and in no other, the foreign power at issue — here, Russia — is always the “target” of a counterintelligence probe; but it is never a “target” in the technical criminal-investigation sense in which Gowdy used the term . . . unless you think we are going to indict a country.

Moreover, even if we stick to the criminal-investigation sense of “target,” Gowdy knows it is misleading to emphasize that Trump is not one. Just a few short weeks ago, Gowdy was heard pooh-poohing as “meaningless” media reporting that Trump had been advised he was not a “target” of Special Counsel Robert Mueller’s probe (which is the current iteration of the Russia investigation). As the congressman quite correctly pointed out, if Trump is a subject of the investigation — another criminal-law term of art, denoting a person whose conduct is under scrutiny, but who may or may not be indicted — it should be of little comfort that he is not a “target”; depending on how the evidence shakes out, a subject can become a target in the blink of an eye.

So, apart from the fact that Gowdy is dodging the question about whether the Trump campaign was being investigated, his digression about “targets” is gibberish. Since the Obama administration was using its counterintelligence powers (FISA surveillance, national-security letters, unmasking identities in intelligence reporting, all bolstered by the use of at least one covert informant), the political-spying issue boils down to whether the Trump campaign was being monitored. Whether Trump himself was apt to be indicted, and whether threats posed by Russia were the FBI’s focus, are beside the point; in a counterintelligence case, an indictment is never the objective, and a foreign power is always the focus.