Trey Gowdy’s defense of the FBI in “spygate”

In an interview on CBS, Rep. Trey Gowdy poured cold water on claims that the FBI behaved improperly towards the Trump campaign in 2016. Gowdy, who attended a classified briefing last week about the use of an FBI informant to gather information from individuals in the Trump campaign, said:

I think the FBI, if they were at the table this morning, they would tell you that Russia was the target and Russia’s intentions toward our country were the target. The fact that two people who were loosely connected to the Trump campaign may have been involved doesn’t diminish the fact that Russia was the target and not the campaign.

In Gowdy’s view, the FBI was trying to ascertain what we “would want the FBI to find out” regarding Russian connections with the Trump campaign.

I have great respect for Trey Gowdy. He calls them as he sees them, and he usually sees them clearly. His defense of the FBI should be taken seriously.

However, I don’t find his defense, as stated during the interview, to be persuasive.

I’m sure Gowdy is right that the FBI would tell us, as it told him, that Russia was the target of the investigation. And Russia might, in fact, have been a target.

But an investigation can have more than one target. Indeed, I assume that investigations of conspiracies (or collusion) often target both parties suspected of conspiring (or colluding). Thus, the fact (if it’s true) that Russia was a target wouldn’t mean that the Trump campaign wasn’t one also.

By target, I mean subject of the investigation. As Andy McCarthy points out, “target” is a term of art in criminal investigations — it denotes a suspect who is likely to be indicted. In that technical sense, neither Russia nor the Trump campaign was a target when the FBI tried to inject its informant into the campaign and when it engaged in electronic surveillance of Carter Page. There was no criminal investigation at that stage. There was only a counter-intelligence investigation.

The Trump campaign was a subject of that investigation. We know this because (1) it’s obvious and (2) as McCarthy shows, James Comey has so testified.

“Targets” aside, Gowdy’s big claim is that we should want the FBI to act as it did here. To this, McCarthy counters:

To be sure, no sensible person argues that the FBI should refrain from investigating individuals suspected of acting as clandestine agents of a hostile foreign power. The question is: How should such an investigation proceed in a democratic republic whose norms forbid an incumbent administration, in the absence of strong evidence of egregious misconduct, from directing its counterintelligence and law-enforcement powers against its political opposition?. . . .

[I]f all the Obama administration had been trying to do was check out a few bad apples with suspicious Russia ties, this could easily have been done by alerting the Trump campaign and asking for its help.

It’s clear to me that, the FBI’s protestations to the contrary notwithstanding, the Obama administration considered Trump the “bad apple.” It beleived that Trump had significant ties to Russia. It suspected that these ties helped explained why Trump kept saying fairly nice things about Vladimir Putin. It suspected that these ties might well explain Carter Page’s presence in the campaign. It suspected that Russia was helping the Trump campaign and that Trump welcomed Russia’s help. And it wanted to believe these things were true.

Given these suspicions, it wouldn’t have made sense for investigators to alert the Trump campaign and ask for its help in countering Russian influence and interference. So it’s not surprising that the FBI didn’t do so.

But suspicions (even those of non-partisans, as opposed to the partisans doing the suspecting here) are not “strong evidence of egregious misconduct” (to use McCarthy’s words). Thus, if one agrees with McCarthy that only such strong evidence justifies directing the government’s counterintelligence and law-enforcement powers against political opposition, then the administration’s snooping was improper.

Even if one believes that a lower evidentiary threshold should apply, I doubt it was met in this case. Indeed, since the FBI apparently isn’t admitting that its suspicions extended beyond the two low level “bad apples,” I doubt it presented Gowdy with evidence that would justify doing more than simply alerting the Trump campaign and asking for its help investigating those two.

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