If the Supreme Court were to accept the plaintiffs' logic in Trump v. Hawaii, the judicial branch will gain new powers over defense policy.
By now, you must have heard of the FBI’s plot to undermine President Trump. It’s what his lawyers allege. No doubt you also know, from members of the Democratic Party, of Trump’s plot to undermine the FBI. Washington floats in a sea roiled by high-stakes political and bureaucratic fights tinged with foreign intrigue.
The battles are not unprecedented. In several respects we have been here before. During the communist controversy in America, Democrats and Republicans drove each other crazy over Russian and Chinese communists’ attempts to steer the U.S. ship of state with the help of Americans sympathetic to their cause. The turmoil reached deep into the agencies of the federal government, as can be seen in the Amerasia affair, the first espionage case of the postwar period.
The case began, to be more precise, after Victory in Europe day (May 8, 1945) but before the United States dropped nuclear bombs on Japan to end the conflict in the Pacific. It involved one of the Allies, China, which was headed for civil war between Chiang Kai-shek’s Nationalists and the communists forming up in the north, led by Mao Zedong and Zhou Enlai. Ideally the groups were supposed to unite with each other and with the U.S. military in defeating the invading Japanese. They kept their eye more on each other than on the Japanese enemy, though.
Americans chose sides between them. The Left wanted the United States to abandon the corruption-plagued Nationalists and deliver China’s future into the hands of the communists (Jeffersonian-style agrarian reformers, supposedly). The anticommunist Right defended Chiang Kai-shek, their hope for keeping China from falling to the Reds. They decried communist subversion of American institutions. Some in the State Department favored Chiang’s Nationalists, while others, like the fluent-in-Chinese foreign service officer John Stewart Service, favored Mao and company.
As Harvey Klehr and Ronald Radosh detail in their definitive history, The Amerasia Spy Case: Prelude to McCarthyism (1996), Amerasia was a communist-friendly magazine in New York whose editors gained access to reams of U.S. government documents—some secret, some not, but most bearing information and/or rumors to the discredit of Chiang Kai-shek and the Nationalists. (There was even a racy “dossier” on the dedicated womanizer, Chiang.) John Stewart Service and five other Americans were funneling the documents to Amerasia, among other press outlets, and when the magazine began printing them nearly verbatim, the leakers came under the scrutiny of the Office of Strategic Services (precursor of the CIA) and FBI. The FBI bugged their apartments. In several “black bag jobs,” agents first of the OSS and then the FBI secretly entered Amerasia’s office on Manhattan’s Fifth Avenue to seize materials that had been unlawfully spirited out of the State Department, the Office of Naval Intelligence, the OSS, and other agencies in Washington.
These agencies’ failure to take internal security seriously angered the anticommunists (not all of whom were Republican, for President Truman, too, wanted the six leakers vigorously prosecuted). J. Edgar Hoover, founding director of the FBI, faulted the State Department for its laxity. After the six conspirators were taken into custody, he faulted the Justice Department for lacking prosecutorial zeal.
Officials at Justice, in turn, slammed the FBI for bungling the interrogations of the leakers—one of whom, Amerasia editor Philip Jaffe, was a Soviet sympathizer who had made overtures to a Soviet agent. The FBI failed to turn any of the six against the others, which might have yielded testimony capable of holding up in a court of law. In those days, the FBI applied to the Attorney General of the United States, not to a court, for wiretap authority. That authority was shaky in light of the Fifth Amendment’s guarantee against self-incrimination. It was another impediment to building a good legal case.
When the Amerasia prosecutions collapsed, it enraged congressional Republicans. They saw a Democratic administration downplaying the theft of military intelligence in wartime—and the communist threat in general—out of embarrassment. With the FBI’s encouragement, a Republican congressman pressed for a House investigation but it came to naught. Two years later, the same kind of embarrassed foot-dragging would again characterize the Democratic response when espionage on behalf of Josef Stalin’s Russia by New Dealers such as Alger Hiss (State Department) and Harry Dexter White (Treasury Department) came to light.
So, how comparable are these Cold War events to today’s situation? Is Carter Page, an apologist of Vladimir Putin and tangential aide to the Trump presidential campaign, a new Philip Jaffe or Alger Hiss? Is Michael Flynn, the Putin-friendly first national security advisor to Donald Trump, the 2018 version of what used to be called a “comsymp”? Is Donald Trump himself under the Kremlin’s thumb?
One needs to consider another question here: What is a Russian agent? The distinction between a “witting” participant in a foreign influence operation and an “unwitting” one has always mattered. The Soviets used to say (and here I quote from one of the Venona decrypts of the World War II cable traffic between Moscow and Russian spies in the United States) that if so-and-so can’t be “signed up” as an agent, “it is desirable to use him without signing him up.” In the case of John Stewart Service, he was being used—he did not intend to work with a foreign power, only to sell the pro-Mao, anti-Chiang point of view to U.S. policymakers and the public. Philip Jaffe was a different, and more nefarious, story.
The very strange Mr. Page, who started being tracked by the FBI’s counterintelligence division in 2013, does not seem to have co-conspirators nor has he been charged with a crime. Flynn (so far, anyway) has pled guilty only to the “process crime” of lying to the FBI. By the look of it, they aren’t witting collaborators.
As for Trump, he wants to fire the special prosecutor investigating Russian interference in the 2016 election, but the motive seems to be his desire to quash inquiries into his dubious business and personal dealings. His defensiveness on Russia and the election is more about staking out his Electoral College victory over Hillary Clinton as solely his own, not the gift of Putin. Surely Presidents should be cannier in these matters than Trump has shown himself to be so far. His strange overtures to Putin tend to confirm that he is, as the estimable Wall Street Journal writer Holman Jenkins has called him, “the political innocent in this drama.”
Clearly the then-now parallel has its limits. But both the similarities and the differences are telling.
Consider how politically topsy-turvy it is, in 2018, for a fire-breathing conservative like General Flynn to be accused of treason against the United States by his Democratic detractors. Today, like in the 1940s, sympathetic media outlets leak stories on behalf of the political side they support. Again what a curiously reversed world we live in. During the Amerasia case, the leftwing journalist I.F. Stone—later discovered to have been on the payroll of Soviet intelligence—complained that the only government leakers being pursued by the authorities were leftwing leakers, and it wasn’t fair. Today, Sean Hannity and Mark Levin carp that only rightwingers like Flynn are being investigated about their foreign contacts. Why should the authorities overlook the shady dealings with Russia of which the Clinton Foundation and/or Hillary Clinton may be guilty, and why are they failing to prosecute Clinton’s negligent handling of classified emails during her tenure as Secretary of State?
As before, accusations of “whitewash” are heard in Congress—though this time around each side of the aisle has its own version. Members of the House of Representatives issue competing subpoenas, with leading Republicans demanding investigations of Clinton’s email server, and of the “unmasking” of U.S. persons by Obama administration officials during their counterintelligence surveillance of suspected Russian intelligence operations. Representative Adam Schiff (D-Calif.) keeps insisting that proof of Trump’s collusion with Putin and his minions during Election 2016 is about to be produced (but none seems to be in the offing, as some Democrats, including his senatorial colleague, Dianne Feinstein, admit).
As before, the Justice Department and FBI are at odds, with Attorney General Jeff Sessions firing former deputy FBI Director Andrew McCabe for “lack of candor” in connection with the various Russia probes. Even within the FBI, there is a demoralizing split between the politically less conservative top brass and the politically more conservative rank-and-file agents.
Perhaps the biggest difference between then and now, of course, is that the threat the Russians pose today is not ideological in nature. They still run influence operations here, as they have done for generations. America fought back with its own during the Cold War—though I’m not asserting moral equivalence, which would entail conflating, say, the bankrolling of Encounter magazine or Radio Martí or political candidates with the chasing down of Moscow’s enemies, real or perceived, and disappearing them (Spain, 1936) or poisoning them (United Kingdom, 2018).
The Kremlin’s pumping out of disinformation to pollute democracy in the United States (and also in other countries) has gotten easier in the digital age. Now that Marx and Lenin aren’t involved, and now that Kremlin-directed actors are reading our Facebook pages and hacking top Democrats and the Democratic National Committee, it has finally gotten the attention of the anti-anticommunists—who always used to pooh-pooh any concerns about agents of foreign powers operating in the United States.
Not surprisingly, given how this breaks down in partisan terms, they have gone beyond wising up about the threat. They’ve leapt all the way to the conviction that Putin decided the presidential election. The dark conspiracy they claim may, however, turn out to be better explained by a lucky accident (lucky, that is, from Putin’s point of view). For there is an aspect of the Russian influence story that has yet to be properly explored, and it “fits neither party’s preferred narrative of blame-laying” (to quote Holman Jenkins again).
It brings us back to the FBI. As Karoun Demirjian and Devlin Barrett of the Washington Post reported last year, the former FBI Director, James Comey, was manipulated by a fake Russian document into losing his trust in his boss, then-Attorney General Loretta Lynch, which prompted him to make his famous (and in all likelihood vote-influencing) intervention in the election. An intervention, that is, to the advantage of Clinton. He announced she would not be prosecuted regarding her email server. The announcement dismayed his subordinates in the rank and file. Is that why, crazily enough, he intervened a second time, to say the matter wasn’t concluded after all? Perhaps some day we’ll know the answer. In any case his October intervention is cited by Clinton to this day as a major reason she lost the race for the White House.
If the Kremlin determined the outcome of the vote through a patsy it may well have been Comey, not Trump. Not that Putin isn’t smiling about the chaos he sowed.