Opinion

Trump’s FBI Conspiracy Theory, Dissected Block by Ludicrous Block

President Donald Trump’s feigned outrage over a super-secret FBI spy invading the sanctity of his upstanding presidential campaign has got to be the dumbest conspiracy ever. And I don’t mean “dumb” in the oh-c’mon-the-FBI-is-full-of-good-guys-who-are-beyond-reproach sense. I mean it in the that’s-just-not-how-it-works sense.

Trump is clearly peddling his righteous indignation to anyone looking for a reason to disregard the ultimate results of the Mueller investigation; those jumping on this most rickety of bandwagons, though, are proving themselves to be willfully blind to the entire concept of American law enforcement. And yet, Congressional Republicans are now coordinating with the White House to further Trump’s blatantly self-serving demands that someone investigate the investigators.

First, let’s take a look at the “scandal” of the FBI’s using a confidential informant.

I know the president likes to incessantly watch Fox News. He may want to consider activating his free month of Hulu or Netflix or something, though. If he’d watched a couple of episodes of basically any TV legal drama – he might have realized that law enforcement agencies at every level use confidential informants all the time. If the FBI had suspected the Trump campaign to be a hotbed of lawbreaking, it would have been perfectly normal (and certainly not illegal, as my colleague Ronn Blitzer explained) for them to have relied on a confidential informant as a source of inside information.

Of course, there’s never any guarantee that a CI will provide intelligence that’s either accurate or helpful – and there’s even less guarantee that what’s uncovered would lead to admissible evidence legal proceedings. But that’s why the word “investigate” is different from the word “prosecute.” Unlike things like subpoenas and warrants, which require a degree of evidence before authorization, informants are used during all phases of investigations to develop cases. The idea that there’s something sinister about the FBI’s gathering information from a willing participant is just silly.

Trumpeters will point out that the alarm bell the president rang tweeted focused on motivation – that it was scandalous for an informant to have been used “for political purposes.” Sure, that would be problematic if it actually happened – which it probably didn’t.

The FBI is a law enforcement agency. Its mission is to enforce federal law through various types of investigations and prosecutions. Using its considerable power to achieve a goal unrelated to law enforcement (like, for example, furthering some sort of political end, as Trump has alleged) would certainly be a departure from the norm. As former federal prosecutor Daniel Goldman said – that is simply not how the FBI operates.

If the FBI were to use its considerable resources toward a purely political end, the decision to do so would also have had to involve more than a few people. As former FBI special agent Josh Campbell explained to CNN:

“[the use of informants] is among the most highly scrutinized within the Department of Justice. Not only are there very specific guidelines surrounding the deployment of sources, each source operation is continually and meticulously reviewed in order to ensure the source is operating lawfully and does not present undue risk to the government.

Furthermore, any operation involving a presidential candidate as a target would require “even greater oversight as they fall within a category deemed Sensitive Investigative Matters, or SIMs.”

All that would make it unlikely that the FBI just stopped caring about law enforcement and started caring about elections. But what makes Trump’s conclusion impossible is that the FBI obviously, demonstrably, and unequivocally did have a legitimate law-enforcement goal for conducting its investigation.

The FBI was investigating Russian interference into the 2016 election. We know that. That investigation has yielded findings that Russia was, in fact, involved in efforts to affect our election. Checking into those efforts sure sounds like a legitimate law-enforcement goal to me.

Now’s probably a good time to talk about this informant’s actual role in what President Trump and others have characterized as a “spy” who was “implanted” into his campaign. According to reports, the informant about which Trump is ranting is University of Cambridge professor emeritus Stefan A. Halper.

Halper wasn’t a member of Trump’s campaign staff; rather, he was someone who spoke with Trump campaign advisers (specifically, George Papadopoulos, Carter Page, and Sam Clovis) in talks and meetings about foreign policy. During the summer and fall of 2016, Halper began working as a confidential FBI informant as the FBI began investigating Russian interference in the campaign.

Dramatic as all that spy-talk sounds, the facts point to Halper’s simply being a guy who talked to other guys close to the Trump machine.

Let’s regroup. The FBI’s job is to investigate illegal activity. It was investigating illegal meddling into our election. It used an informant during that investigation who talked with people inside the Trump campaign.  That investigation yielded indictments and convictions of those very same people– for lying about their contact with the Russians. In other words, job well done!

Back to Trump’s gripe: that the FBI’s use of an informant was not related to law enforcement, but rather, was motivated by a political goal of subverting Trump’s candidacy. Putting aside that the FBI obviously had a law enforcement goal, and that there appears to be exactly zero evidence of any political goal – there’s another giant inconsistency with Trump’s conspiracy theory – and its initials are HRC.

Remember when James Comey blabbed about the FBI re-opening the Hillary email investigation? And how that ended up hurting her campaign? Similarly, had the FBI publicly stated that it was investigating Trump for something way more menacing than email servers, that would have been some pretty fantastic ammunition to help sink Trump’s campaign. If anti-Trump politics had been the goal, the FBI could simply have held a presser and handed Clinton a few more electoral votes. But it didn’t do that.  As The Hill‘s Bill Press wrote, Trump should probably be thanking the FBI his presidency — not attacking it.

That basically leaves us with a theory whereby the FBI followed its standard operating procedures to gather information for an ongoing investigation, and kept quiet while it was doing so in a manner that (while unintentional) pretty clearly helped Trump win the election. This adding up to a deep state anti-Trump conspiracy is seriously pushing the bounds of rational thought.

When pared down to its essential elements, the cries for new special investigations into existing special investigations should seem most familiar to those who spend regular time in the world of criminal law. In the land of criminal defense, “the cops are all against me,” is just as common as, “it was a different guy who just looked like me.”   These are the often-illogical-but-always-passionate arguments made by habitual criminal defendants and their willing-to-try-anything attorneys in courtrooms every day. Leftie defense lawyers are the ones to talk of “the system” and how it unfairly disadvantages their clients. It’s supposed to be the Johnny Cochrans of the world who weave tales of corrupt police departments, while law-and-order conservatives laud our venerable apolitical law enforcement organizations like the FBI.

Now, though, we have a president who is not only attacking the nation’s most trusted law enforcement agency, but who is also demanding that the DOJ do his bidding.

In any other context, conservatives would call out this behavior for the self-serving abuse of influence it so clearly is. Trump’s blame-the-cops strategy rarely works for criminal defendants in the ordinary course, not because all law enforcement officers are perfect, but because most are truly committed to actually enforcing the law.  When the same ridiculous arguments are advanced by drug dealers, mobsters, or tax evaders, the public looks on while rolling our collective eyes.  Yet somehow, this president has convinced members of his eternally flag-waving and badge-worshipping party that when the work of our nation’s finest reflects poorly on him, that they deserve blame. It is a role reversal of unprecedented proportion that is as sad as it is unfounded.

 

This is an opinion piece. The views expressed in this article are those of just the author.

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. She is a frequent media contributor, and is Of Counsel to Smedley & Lis, in Woodbury, New Jersey. Follow Elura on Twitter @elurananos

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