We’re focused on the wrong part of the FBI’s Trump investigation

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On Wednesday night, the U.S. Court of Appeals for the 11th federal circuit issued a partial stay of District Judge Aileen Cannon’s decision granting Donald Trump a special master to review the 11,000 documents found by the Federal Bureau of Investigation at his home in Mar-a -Lago were confiscated. The ruling temporarily exempts classified documents from Special Master Raymond Dearie’s review and allows a criminal investigation into them to proceed.

the legal community, including many on the right, was stunned by Cannon’s judgments in the case. Even Trump’s former attorney general, William P. Barr, called them “deeply flawed.” On the left, many have questioned Cannon’s independence because Trump appointed her and she is leading a case he is actively trying to discredit.

However, if history is precedent, all of this legal wrangling could be moot, since the FBI’s investigation into Trump’s document keeping has another component: a counterintelligence operation, which is a different matter altogether. The FBI counterintelligence program is responsible for “detecting, preventing and investigating intelligence activities in the US” that threaten “the nation’s critical assets” and for ensuring “weapons of mass destruction do not fall into the wrong hands.” In the past, this mission was paramount, justifying the FBI with extremely aggressive, secretive, and sometimes unlawful tactics.

This story shows that it’s the counterintelligence element of the FBI investigation into Trump that could pose the greatest risk for the former president, particularly because it’s the part where the courts know the least about what the FBI is doing, and the least probably know limit what it can do.

J. Edgar Hoover—the first FBI director and the man who ran the FBI for nearly half a century—embodied the FBI’s use of espionage-like tactics in its counterintelligence program. Hoover learned the art of such tactics in connection with fascist European police forces before World War II.

In the 1930s, President Franklin D. Roosevelt tied the New Deal to Hoover’s notoriety to ward off conservative critics. The FBI could hunt bank robbers and kidnappers across statehood, it was equipped with fast cars, fast guns and radios. It had ties to Hollywood studios and New York publishers. Outlaw hunts like “Baby Face” Nelson, “Machine Gun” Kelly and “Pretty Boy” Floyd captivated audiences with the power of Roosevelt, Hoover and the New Deal.

Meanwhile, under the radar, Hoover forged ties with anti-Communist police corporations such as the International Criminal Police Commission, which was taken over by Nazi Party officials in 1935. Hoover sent FBI delegates to Berlin in 1939 to learn what the ICPC called “repressive measures” and preventive measures against acts of preparation for crime and other dangerous behavior that indicate criminal intent.”

Roosevelt authorized Hoover to turn the FBI into counterintelligence — but he suspected Hoover was anti-fascist and would target Nazi and Japanese sympathizers. Instead, conservative Hoover wanted to stop America’s “communists,” a label he commonly applied to liberals fighting for an expanded federal government that provided a social safety net.

Hoover hid his contempt for the New Deal behind the popular Roosevelt and sensed a battle he could not win. But after Roosevelt died in 1945, Hoover began attacking his ideology, institutions, workforce, and beneficiaries. Hoover and the new President, Harry S. Truman, already had a hostile relationship, and soon whispers were swirling around Washington that Truman would downsize the office and fire Hoover.

Hoover countered that any attempt to remove him from office was an international communist conspiracy to weaken US defenses as part of a Soviet attack. In the burgeoning Cold War climate, that was a strong claim — one that protected Hoover’s job.

The claim fitted Hoover’s broader tactics in that era. In 1947, Congress passed the National Security Act, which made the FBI responsible for protecting nuclear secrets and authorized the FBI to remain a counterintelligence agency even after World War II in the past. Hoover used this authority to foment the “Red Fear,” which mixed the real problem of nuclear espionage with fear-mongering that the New Deal offered shelter to traitors intent on weakening the FBI.

Beginning in 1956, Hoover went tactically even further, launching an operation called COINTELPRO (counterintelligence program) that combined massive amounts of surveillance, extortion, propaganda, and violence. He valued dirty secrets about his opponents and their loved ones that he could use to silence dissent.

Assistant director William Sullivan oversaw COINTELPRO and later wrote in his memoir that the moment Hoover soiled a senator, he sent an emissary to Capitol Hill to make sure the senator knew the bureau “had accidentally stumbled upon this data.” was your daughter.” Hoover wanted the senator to know this because “from this point on, the senator has the right in his pocket.”

When illegal surveillance discovered criminal activity, agents turned it over to the Justice Department’s Criminal Division for prosecution. At other times, however, Hoover’s agents resorted to it production of such evidence.

COINTELPRO not only targeted politicians and activists like the Rev. Martin Luther King Jr., but also the organizations and social movements to which they belonged. In its 15 years of existence, it has focused on the women’s liberation movement, the US Communist Party, anti-Vietnam War organizations, environmental and animal rights organizations, the Native American movement, Chicano and Mexican American groups, Puerto Rican independence groups, and civil rights and Black Power movements, especially their leadership. While COINTELPRO focused primarily on left-wing groups, it also examined far-right groups such as the Ku Klux Klan and the National States’ Rights Party.

COINTELPRO could have a devastating impact on organizations. FBI records for “COINTELPRO – BLACK HATE” directed agents to “interfere with, misdirect, discredit, or otherwise neutralize the activities of black nationalist hate organizations.” Accordingly, the FBI planted flammable material among organization members to sow division. The FBI also used coercive tactics to antagonize friends and allies. Other common COINTELPRO tactics included perjury, harassment of witnesses, intimidation of witnesses and withholding exculpatory evidence.

COINTELPRO was the state’s response to the civil rights movement, accelerating with the tumult of the 1960s as fear of Cold War subversives continued to swirl. The program was uncovered in 1971 by a group of concerned citizens calling themselves the Citizens’ Commission to Investigate the FBI. The commission broke into an FBI field office in Media, Pennsylvania and leaked classified documents to news outlets. Dirty revelations about the program caused an uproar and led to its downfall. But in its 15 years it had a major impact on American politics and society, revealing how far secret counterintelligence operations could go without eliciting scrutiny.

Counterintelligence programs reach their peak at times of heightened concern about nuclear espionage and nuclear war. The recent deterioration in relations between Russia and the United States and tensions between China and the United States, as well as the unusual activities at Mar-a-Lago, are reminiscent of the conditions that produced COINTELPRO.

Trump’s efforts to delay and discredit the DOJ’s criminal case could slow federal prosecutors’ work. Cannon’s judgments may support him. But that probably won’t slow the counterintelligence work being done to determine what damage – if any – Trump’s preservation of documents has done. If the FBI has evidence of espionage, US politics could be on the cusp of transformation. Though times have changed, one thing remains true: Americans and politicians are willing to tolerate aggressive tactics in the name of national security in times of fear.

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