A Guide to Spygate

The FBI is many things to many people, but seen from the inside where I spent my career as an FBI agent, most of all it is a bureaucracy. The evident abuses of the vast investigatory powers of the Bureau to surveil the campaign of Donald Trump has left a paper and electronic trail as it jumped through the many procedural hoops required for Spygate to unfold.

Based on a clue from the Strzok-Page texts and my understanding of the rules the FBI has to play by, it is possible to piece together a picture of how and why surveillance of the Trump campaign probably unfolded.  But in order to understand ​what happened, we’ll need to explore the nature of FBI investigations, because the type of investigation controls, to some extent, the type of investigative techniques that are authorized. All this is set out in detail in the Attorney General Guidelines For Domestic FBI Operations (AGG) and the FBI Domestic Investigations And Operations Guide (DIOG).

Basically, there are three types of FBI investigations that involve opening a​n investigative​ case file:

1) Assessments,

2) Preliminary Investigations, and

3) Full Investigations.

The latter two are grouped as “Predicated Investigations” because, unlike in the case of an Assessment, an agent will need to present some degree of factual predication before he can open one of these types of investigation. The type of investigation that is opened will depend upon the factual situation, and if additional facts are developed in the course of the investigation, the type of investigation may be upgraded.

As far as investigative techniques go, the Assessment ​serves as a baseline — any technique that can be used in an Assessment can ​also be used in a Preliminary or Full  ​Investigation. For our purposes, the important point is that the use of existing informants (Confidential Human Sources/CHS) or the recruitment of new informants is authorized for ALL three types of investigations.

There has been some confusion recently regarding the use of informants before a “formal” case has been opened. The confusion arises because Assessments are sometimes conflated with the informal initial checking of investigative leads conducted to determine whether or not to open an investigative case file. That type of informal checking can only be conducted using public information, not through the use of informants.

Once an agent has gathered enough facts to direct an informant to target specific persons he will certainly have enough “predication” to warrant opening at least a Preliminary Investigation. And that targeting of specific individuals is precisely what we’re dealing with in Spygate.

What, then, is the distinction between the Preliminary and the Full​ Investigation​? Briefly, the Preliminary ​Investigation ​​requires a significantly lower level of predication than a Full​ Investigation​. Whereas a Preliminary ​Investigation ​can be opened simply on the basis of “information or allegations,” a Full ​Investigation ​requires “an articulable factual basis.”

If we plug those phrases into the formulations that we find in the AGG, the significance will become very apparent. Note, first, in the case of the Preliminary ​Investigation ​that the predication ​can be somewhat speculative, as evidenced by use of the word “may.”

Predication Required for Preliminary Investigations

1. A Preliminary Investigation may be initiated on the basis of information or an allegation indicating that an activity constituting a threat to the national security has or may have occurred, is or may be occurring, or will or may occur. Or,

2. A Preliminary Investigation may be initiated on the basis of information or an allegation indicating that an individual, group, or organization may be a target of attack, victimization, infiltration, or recruitment in connection with a threat to the national security.

In other words, a Preliminary Investigation can be opened even though the factual basis of the “threat to national security” hasn’t been verified — as long as the “information or allegation” “may” be credible. Naturally, those issues must be presented in detail in an opening Electronic Communication (EC).

Recall that informants can be used in the course of a Preliminary Investigation. Now, suppose that the FBI learns that a presidential campaign is seeking​ or being offered​ “dirt” on its opponent from a hostile foreign power — Russia, for example. The FBI could arguably be justified in regarding this as constituting a possible threat to the national security, opening a Preliminary Investigation, and deploying informants to learn more.

​The real problem, as it seems to me, would ​​be if the use of informants ​should turn into an effort not to discover the truth ​but to produce inculpatory evidence. And here, I think, we see where James Clapper’s we were only trying to protect Trump talking point comes into play.  ​An effort to protect an individual or group would be a valid purpose for opening a Preliminary Investigation, but is that in fact how the FBI ran their investigation​ of the Trump campaign​? To come to an informed decision, we would need to look at the entire circumstances — did the FBI in fact take steps to protect or warn the Trump campaign, what were those steps, etc.

Now, when we turn to the Full Investigation, on the other hand, the speculative element disappears.

Predication Required for Full Investigations

A Full Investigation may be initiated if there is an articulable factual basis for the investigation that reasonably indicates that one of the two conditions specified above (with regard to Preliminary Investigations) actually exists.

This suggests why the FBI and DoJ are so intent on preventing Congress from reading the EC that opened the Full Investigation on July 31, 2016. The EC would have had to state the “articulable factual basis” for the investigation. In other words, the EC would have had to assert that there were specific, verified facts indicating a ​threat to national security, and it would have had to explicitly state what those facts were. When someone determinedly attempts to withhold a document of that sort from Congress I think we’re entitled to draw some adverse conclusions.

Now let’s try to place all this into perspective.

If you accept the argument that a presidential campaign that seeks “dirt” on its opponent from a hostile foreign power (Russia) is engaged in conduct that arguably constitutes activity that is a “threat to the national security,” and if you further accept that the FBI’s claims regarding its Papadopoulos narrative are credible, then you may be inclined to agree with Trey Gowdy’s and Paul Ryan’s notion that the FBI was acting properly. Or, to be more specific, you may be inclined to agree that a Preliminary Investigation was warranted, since the AGG allow for a Preliminary Investigation to be “initiated on the basis of information or an allegation” of a “threat to the national security.” “Information or an allegation” is a fairly low bar.

But, if the matter were that simple, why wouldn’t the FBI simply open a Preliminary Investigation and target their informants against the Trump campaign? Why bother with a Full Investigation at all, as we know they ​later ​did? I suggest that there’s a relatively straightforward answer to these questions.

Virtually all commentary that I’ve read focuses on the initiation by the FBI of a Full Investigation on July 31, 2016. Commentators who have constructed timelines of events — an excellent idea, in and of itself — then often argue that the use of informants or “spies” against the Trump campaign prior to July 31, 2016 — for which there is considerable evidence — violated the AGG, since the FBI would have been targeting informants without an open investigation.

While it’s possible that the FBI willfully violated the AGG in this manner​,​ it seems unlikely — bureaucracies don’t often operate in such a reckless fashion. ​They seek to keep their backsides covered at all times.​

Moreover, this view ignores an important possibility, namely, that before the Full Investigation was initiated (July 31, 2016) there may have been a Preliminary Investigation opened that was being actively worked.  This approach — use of a Preliminary Investigation as a prior stage before going for a Full Investigation — ​is actually quite common in counterintelligence work and ​fits better with the usual careful bureaucratic approach. It also, intriguingly, dovetails with President Obama’s reported admonition to “do it by the book” (see below). But, you ask, if that was the case, wouldn’t the FBI have been eager to inform Congress that it had been following all the rules? The use of informants against a presidential campaign might be politically ​embarrassing, but the idea that it was done illegally would be far worse than if it had actually been done legally, under the authority of a Preliminary Investigation, right? Maybe not.

It’s possible that the FBI may have had an arguably justifiable Preliminary Investigation open in the Spring of 2016, but are now desperate to conceal what they were doing with that Preliminary Investigation. The reason is suggested by D. Manny. In a Strzok/Page text dated 4/30/16 we read:

“So now we’ve switched from the Patriot Act to a wire carrying current (redacted)”.

What does this mean? D. Manny explains:

2. The Patriot Act is the broad legislation that the government used to conduct much of its “eavesdropping” via 702 queries on the American public — and Donald Trump.
3. We know that because of the valiant efforts of Admiral Rogers, the 702 queries were abruptly halted on April 18, 2016 when widespread and suspicious abuse was… Read more: https://www.americanthinker.com/articles/2018/06/a_guide_to_spygate.html#ixzz5IpjnnmxG