The dueling Republican and Democratic talking points on Russian interference in the 2016 Presidential election were on full display during the recent testimony of former CIA Director John Brennan to the House Intelligence Committee.
Democratic members and surrogates concentrated their attention on potential abuse of power and obstruction of justice, while Republicans focused on leaks and the lack of tangible evidence of Trump campaign officials’ involvement in illegal activities in support of Russian intelligence efforts. Republican Congressman Trey Gowdy’s pointed question to Brennan was an example of the Republican effort: “Do you have evidence of Trump-Russia collusion or not?” More strident conservative outlets accuse officials from the intelligence and law enforcement community – what they call the “Deep State” – of leaking sensitive information to undermine the President.
I think that the Republican strategy of complaining about leaks and the “Deep State” is ill-conceived (and disingenuous). Republicans are deliberately confusing intelligence and evidence, and implying that leaks are coming from inside the intelligence and law enforcement agencies. They know better, and in so doing they are disparaging the committed professionals who are focused on the task at hand.
It is this critical distinction between evidence and intelligence that undermines the Trump campaign’s insistence that there is no “evidence” of its collusion with Russia. Of course there is no evidence. Evidence is what the investigation will uncover, if it exists. If one follows Mr. Gowdy’s logic, his implied demand to end the investigation based on no evidence of collusion is akin to demanding an end to all investigations because probable cause does not amount to evidence. The FBI does not investigate for fun. Any evidence of wrong-doing will not come out until the slow and deliberate process of the professional investigators is finished, and they present their case to the Justice Department.
I agree that almost daily leaks and revelations related to the issue are both exhausting and infuriating. The constant leaks are contemptible and make it harder for those quiet professionals who are carrying out the FBI investigation. As Michael Gerson, a former senior aide to President George W. Bush, commented in the Washington Post, “Public officials should not respond to the fraying of democratic norms by further unraveling them.”
However, there is also another practical reason why the leaks are damaging. For those who are appalled by the President’s actions and hope to hold him accountable, the leaks will make it harder to do so. If there is something there, it will be harder to prove now that the story is public.
Unlike a wholly criminal investigation, a counterintelligence (CI) investigation often uses clandestinely acquired intelligence as a predicate to support further investigative measures. Since a secret source is unlikely to go on the witness stand, or have his/her intelligence parsed in front of a jury, the information is used instead to isolate a subject and try to catch him/her in the act. The best way to solve a CI case is to develop a strong hypothesis and prove it by catching the culprit red handed.
This goes to the heart of the difference between intelligence and evidence. Intelligence is for policymakers who need to look forward, while evidence is focused on looking backward to help the court make a judgment on guilt or innocence. In the realm of intelligence and information, we can know something to be true but still not be able to prove it in court, given the rules and restrictions related to evidence. In the realm of criminal law there is a specific preference for openness and transparency so the accused may be provided with the maximum opportunity to mount a defense. At the same time, however, transparency goes against the imperative of intelligence professionals to protect sources and methods. Once a CI investigation extends into criminal prosecution, the legal discovery process requires sharing evidence with the defense that intelligence professionals are obligated to protect. An aggressive lawyer can scare off the government by insisting on reams of associated secret information as part of the discovery process. For this reason, many potential CI cases are settled out-of-court.
While the intelligence and the law enforcement communities work together in CI cases, it is critical not to conflate secretly acquired intelligence with evidence. By its very nature, intelligence is fragmentary. An overheard conversation of a Russian intelligence officer speaking about an American official is intelligence worth collecting. Of course, it would be unfair to the official in question if we took the information as gospel. It may or may not be accurate. Evidence, on the other hand, is the government’s final assessment of a fact. It is information that has been vetted and prepared to take to a jury. So, when Trey Gowdy pressed the Director of CIA to answer under oath a question like, “Do you have evidence of Trump-Russia collusion or not?”, he knows full well that an intelligence professional can never claim to have collected “evidence.”
The 2001 arrest of FBI Special Agent Robert Hanssen for espionage is a good example of a successful CI investigation. Both CIA and FBI knew that a mole within the national security establishment had been providing secrets to the Russians for some time. They had been working collaboratively to uncover the spy. Information eventually gathered by the CIA pointed directly to Hanssen as the traitor. However, despite clear indications that Hanssen was guilty, including fingerprints on materials passed to the Russians, and an audio tape of his voice, the Justice Department was hesitant to go to trial. They knew that a savvy legal team could attack the motivation of the source and seek to throw out evidence, especially if a foreign source could not make his/her identity known and testify in open court.
Anyone who had access to the information at the time knew with near-100% certainty Hanssen was the spy. So, despite investigators having come to the definitive conclusion that they had their man, a conviction depended on going a step further and catching Hanssen in the act of communicating secret information to the Russians. Luckily, Hanssen did not know that the joint FBI-CIA team was on to him, and he was arrested red-handed loading a dead drop in 2001.
Fast forward to today, and those Trump campaign staffers under investigation know full well they are under scrutiny and are not likely to take any further action that might hurt their case. In this way, the CI investigation against those associated with the Trump campaign will be made more difficult by the publicity surrounding it. CI investigations are kept secret for good reason.
Certainly, some circumstances may impel one to consider leaking sensitive information – from fear of a cover-up to witnessing illegal activity. However, the great bulk of Washington leaks do not appear so tactical. Instead, they stem from political or personal motives. It appears the fast and furious leaks over the past months have been political and have not betrayed the detailed secrets of the investigation. Anyone with real access could provide much more specific and far more damaging information than we have seen to date. The professionals who really know the details are keeping their mouths shut. Consequently, the public is unlikely to know the real information behind the government’s case unless and until recommendations for indictments are made to the Deputy Attorney General. Until then, there will be no “evidence.”