President Obama in 2016 (Joshua Roberts/Reuters)

Where was its concern about Russia during its eight years in power?

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.

The question of what amounts to egregious misconduct in the context of Russia cannot be answered in a Trump vacuum.

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.

I did not support Donald Trump in the Republican primaries; I considered my ultimate vote for him as a vote against Hillary Clinton. One of many reasons I did not support Trump was revulsion over his blandishments toward Putin’s Russia, which I have never regarded as anything but a murderous regime hostile to the United States. This is not a new position for me — I argued it throughout the Bush and Obama presidencies, well before Trump came along (see here, recapping).

That said, the opposition of people like me to the lunacy of deeming Russia a “strategic partner” has not had much impact on U.S. policy. In the three decades from perestroika through Putin, from George H. W. Bush’s “Chicken Kiev” speech through Barack Obama’s hot-mic promise of “more flexibility” on the Kremlin’s agenda of hamstringing America, the U.S. government has regarded the regime in Moscow through rose-colored glasses, as a democratically inclined, capitalism-friendly reformer and potential ally.

The unsustainability of the Communist system, under the pressure of Reagan’s military build-up and support of anti-Communist movements, made the Evil Empire’s disintegration inevitable. Gifted a historic opportunity to dance on the grave of Soviet tyranny, our government’s bipartisan foreign-policy establishment punted. Rather than call the culprits to account and make an enduring record of the hundreds of millions killed and enslaved, successive administrations embraced and propped up Moscow as a force for global stability. You want to tell me about Paul Manafort’s collaboration with Kremlin-backed Ukrainian thugs? How about George H. W. Bush trying to persuade Kiev not to break away from Moscow, after which Clinton, Bush-43, and Obama enticed Ukraine to give up its means of self-defense on the false promise that we would protect them from Russian aggression — a promise premised on the pie-in-the-sky theory that there would be no Russian aggression?

In just the decade before Trump’s 2016 campaign, as the Putin regime menaced former Soviet satellites, the Bush administration negotiated and submitted to Congress the daft U.S.-Russia civilian nuclear cooperation agreement, endorsing the export to Moscow of technology, material, equipment, and components for nuclear research and nuclear power production. Russia’s invasion of Georgia — including the still-ongoing occupation of Abkhazia and South Ossetia — made congressional approval of this embarrassing pact politically impossible for a time. Yet it was revived soon enough in the Obama “reset” of relations with Moscow steered by then-secretary of state Hillary Clinton. Clinton promised an era of cooperation in counterterrorism and non-proliferation while Putin went merrily along backing nuclear-energy development and advanced military capabilities in Iran, the world’s leading state sponsor of jihadist terrorism. Obama, of course, made nary a peep since he needed Moscow’s help to pull off the ludicrous Iran nuclear deal. As the Putin thug-ocracy rattled its saber, Obama ushered its entry into the World Trade Organization and pushed through the wayward “New START” treaty.

In the 2012 campaign, when Mitt Romney portrayed Russia as our principal geopolitical foe, Obama and Democrats mocked him. In the 2016 campaign, Trump’s Russia rhetoric was an echo — in Trumpian bluntness — of the Democrats’ position. Alas, they had nominated the candidate most ill-suited to exploit the Putin appeasement flavor of the Trump bid.

Mrs. Clinton, we’ve observed, was neck-deep in the Obama administration’s Uranium One scandal. Recall the $145 million that poured into the Clinton Foundation; the half-million-dollar pay day a Kremlin-connected bank ponied up for a short Bill Clinton speech (about five times more than Russia paid for those 2016 ads on Facebook, and more than ten times what the Kremlin’s propaganda arm, RT, paid for a 2015 speech by eventual Trump campaign adviser Michael Flynn); the Clintons’ meetings in Russia with Putin and Medvedev while the U.S. government was mulling approval of Russia’s acquisition — through its energy giant, Rosatom — of one-fifth of America’s uranium stock (in addition to more copious uranium reserves in Kazakhstan); the Obama Justice Department’s refusal to bring a prosecutable felony case against Rosatom’s American affiliate (Tenam USA) while the Uranium One deal was under consideration; and the same Department’s quiet resolution of the case on a sweetheart plea years later, after Putin’s annexation of Crimea and aggression in Eastern Ukraine (despite Obama’s plea for flexibility) had left Obama’s “reset” policy in shambles.


Choosing Political Spying Over Other Alternatives

We could go on. The point, however, is that after 30 years of embracing and empowering Moscow, it is not credible — particularly for an administration that was among the worst offenders — to say, “We had to use spies and FISA surveillance against the Trump campaign due to suspicion that Trump might embrace and empower Moscow.”

Of course, there were also Russia hawks among Trump’s supporters, and it is not surprising that Trump has been tougher on the Kremlin than Obama was — a low bar, to be sure.

That could not have been known in the spring of 2016, when it appears that suspicions about Trump campaign advisers Carter Page and Paul Manafort prompted Obama national-security officials to begin investigating Obama’s (and Clinton’s) political opposition. The Obama administration could have been more measured. If its concerns were based in good faith rather than political opportunism, it could have dispatched the FBI to interview Page (whom agents had interviewed several times since 2013, and apparently did interview in March 2016), and Manafort (who, along with his partner, Richard Gates, was speaking with the Justice Department in 2016 about their work for the Kremlin’s favored Ukrainian political party). It could have given responsible Trump campaign officials a defensive briefing to alert them about its concerns.

Instead, the Obama administration decided to use its counterintelligence powers to spy on the Trump campaign, using at least one covert informant, electronic monitoring of communications, and other intelligence-gathering tactics. It ignored the norm against deploying such tactics against political opponents, not based on evidence of a Trump-Russia criminal conspiracy, but on speculation about the Trump campaign’s Russia contacts and Russia sympathies. Speculation by a government, an administration, and a Democratic-party nominee with their own abysmal histories of Russia contacts and Russia sympathies.