Outrage by liberals and Democrats over Attorney General William Barr noting that “spying did occur” on the 2016 Trump campaign is a sorry example of moving the goal posts. Last year, the active debate was not over whether spying occurred — which it did by a reasonable use of the word — but whether it was justified. Barr was careful not to weigh in on that debate. Yet Democrats, spurred on by their liberal base and supported by the media, have been out to portray Barr’s statement as some sort of shocking betrayal of his role as the nation’s top law enforcement officer.
“Perpetuating conspiracy theories is beneath the office of the Attorney General,” Senate Minority Leader Chuck Schumer, D-N.Y., fumed in calling for Barr to retract his statement. House Intelligence Committee Chairman Adam Schiff, D-Calif., said Barr’s statement, “strikes another destructive blow to our democratic institutions.”
Yet last year, it wasn’t being disputed that among other things, that the FBI conducted surveillance of Carter Page, a former Trump campaign official, that included wiretapping after obtaining a Foreign Intelligence Surveillance Act warrant. In a 2018 memo by none other than Schiff, minority Democrats on the intelligence committee argued, “DOJ and FBI would have been remiss in their duty to protect the country had they not sought a FISA warrant and repeated renewals to conduct temporary surveillance of Carter Page, someone the FBI assessed to be an agent of the Russian government.”
At the time, Republicans had been arguing that the FBI launched the investigation into Russian interference on the basis of a dossier that was based on research funded by the DNC and Clinton campaign. Democrats were arguing that “Christopher Steele’s raw intelligence reporting did not inform the FBI’s decision to initiate its counterintelligence investigation in late July 2016.” Instead, they argued that it began with information the FBI received that Russians were wooing a different Trump campaign foreign policy adviser, George Papadopoulos.
Outside Congress, the debate also focused on whether there was “probable cause” for the FISA warrant, which those pushing back against Trump and Republicans argued that there was.
“Commentators like National Review’s Andrew McCarthy try to discredit the Mueller investigation by sliming the process to spy on a former Trump advisor,” argued an op-ed from the liberal Brennan Center for Justice. “Here’s why they’re wrong.”
So, the issue they were taking with conservative McCarthy was that he was attacking “the process” that was used “to spy on a former Trump advisor” — rather than arguing about whether the spying occurred.
Indeed, the article itself is a case that the FISA warrant was totally justified.
“Now that the Foreign Intelligence Surveillance Act (FISA) application for an order to surveil former Trump campaign advisor Carter Page has been released in heavily redacted form, the attacks on the FBI’s application have been predictably loud yet incorrect,” the op-ed read. “They miss the critical question related to such an application: Was there probable cause to believe that Page was an agent of a foreign power?”
So, the “critical question” concerned not whether there was surveillance, but whether there was probable cause, to which the Brennan Center argued, “the unredacted portions easily meet this probable cause standard and support the FISA court’s multiple orders.”
The surveillance and wiretapping was thus indisputable, as was the fact that it allowed investigators to go back to when Page did work on the Trump campaign. It also doesn’t even get into the fact that, according to the New York Times, “Agents involved in the Russia investigation asked [Stefan] Halper, an American academic who teaches in Britain, to gather information on Mr. Page and George Papadopoulos, another Trump campaign foreign policy adviser.”
This is all perfectly consistent with what Barr said.
“I think spying did occur. But the question is whether it was predicated — adequately predicated,” Barr testified before Congress. “I’m not suggesting it wasn’t adequately predicated, but I need to explore that. I think it’s my obligation. Congress is usually very concerned about intelligence agencies and law enforcement agencies staying in their proper lane.”
The only part he’s stating unequivocally is that there was spying. He is not making a claim that the FISA warrant was illegally obtained on the basis of a Clinton-funded discredited dossier. He just said it was worthy of looking into to make sure the process was proper.
So then the only real argument is if Barr was wrong to use the word “spying” rather than saying “surveillance did occur” or “wiretapping did occur.”
But, even if people want to litigate this issue, it should be seen as a reasonable use of the word. My colleague Byron York noted several examples of the New York Times describing wiretapping as spying.
After the House voted to reauthorize FISA last year, the Brennan Center issued a press release headlined, “U.S. House Votes to Authorize Warrantless Domestic Spying on Americans.” The bill, it warned, would “endorse warrantless searches of millions of Americans’ online and phone communications.” The release quoted co-director of the Brennan Center, Elizabeth Goitein, as saying, “The House just voted to turn the Foreign Intelligence Surveillance Act into a tool for domestic spying on Americans.”
This isn’t to say it’s hypocritical, as in this case, the discussion was about allowing warrantless access, whereas in the previous case, the argument was that there was probable cause for a warrant. But again, a debate over whether a warrant is justified on the basis of probable cause is different than whether the underlying government activity can be described as spying. It’s reasonable to argue that yes it can.