What constitutes “spying”?
“Spying” is generally used as a pejorative, a descriptor of someone looking at something they aren’t intended to see. At the moment, it’s also a very specific battle line in former president Donald Trump’s effort to assert that he was the target of a massive conspiracy aimed at taking him down. And in that context, it’s both blurry and blurring.
At issue in the moment is a court filing from special counsel John Durham in which Durham asserts that an attorney linked to Hillary Clinton’s 2016 campaign “exploited” data collected from Trump Tower and the Executive Office of the President to impugn Trump. It’s a tangle of allegations and context, but, as is generally the case with Trump, the former president set all of that aside to claim that his long-standing claims about having been the target of “spying” had been validated.
To some extent, one’s evaluation of that assertion depends on the definition of “spying.” If you think that Trump had in the past claimed that he was being spied upon only in the broadest sense, then the bar is much lower for proving him right. And if you simply read Durham’s filing or if you read one of the numerous summaries of Durham’s filing that appear on Fox News’s website or if you view one of the snippets of discussion about the filing during Fox’s on-air programming, you might understandably come away with the impression that that bar had been cleared. Hillary Clinton’s campaign infiltrated Trump Tower’s network to claim that Trump was linked to Russia? Trump, validated.
But Trump is moving the goal posts. Trump’s claims about being surveilled during the campaign were specific in who (Barack Obama), what (Trump Tower) and how (wiretapping) he had been targeted. Durham’s filing uses thin thread to tie Clinton’s campaign to the research that was conducted; research that used information apparently obtained not through the CIA-agent-in-Moscow method but the girlfriend-says-to-check-her-email method.
It’s tedious but important to understand what actually happened. Our fact-checkers evaluated the Fox News-powered narrative, as did the New York Times. At issue are what’s called domain name server lookup records, data collected by Internet service providers to track requests from users for information about websites. The technology firm Neustar collects such data; during the period at issue, one of its executives had retained a lawyer, Michael Sussman, working for a law firm that was also working for Clinton’s campaign.
“A military research organization had asked Georgia Tech researchers to help scrutinize a 2015 Russian malware attack on the White House’s network,” the Times’s Charlie Savage explains. “After it emerged that Russia had hacked Democrats” — in June 2016 — “they [the research team] began hunting for signs of other Russian activity targeting people or organizations related to the election, using data provided by Neustar." A number of connections between a server connected (but not run) by the Trump Organization and a Russian bank were elevated and pitched as suspicious both to the FBI and reporters shortly before the election. The FBI declined to investigate. The public story about Alfa Bank was quickly undercut.
So let’s look at the two extremes of the rhetoric here.
Was this Clinton’s campaign spying on the Trump White House? This appears to be an obvious no. In a response to Durham, Sussman’s lawyers note that the data involving the White House complex was solely collected during the Obama administration. (Durham did not state otherwise, though he certainly implied it.) Even if you assume that the campaign was directly linked to Sussman and the Alfa Bank research, that’s not related to the White House data.
Was this someone spying on Trump? To answer this, let’s look at an alternate scenario. In any campaign, researchers compile what’s called “opposition research,” material meant to dig up any possible negative information about an opponent. (In a weird little twist, the Democratic National Committee’s opposition research on Trump was stolen from its network by Russian hackers and leaked to Gawker.) That can and does include scrutinizing material that’s collected by third parties. Is that spying? Sure, it can understandably be framed that way. That doesn’t make it hacking or illegal.
One of the questions raised by Durham is whether the research conducted that led to the purported Alfa Bank-Trump link was intending to serve as opposition research or whether it was instead research unrelated to the campaign specifically. That isn’t clear.
But that draws a useful comparison with Trump’s other long-standing effort to claim that he was being spied on: the FBI’s investigation into various people in Trump’s orbit who were linked to Russia. Trump and his allies have long claimed that the FBI’s probe into possible links with Russia was undue spying. That probe included investigating his campaign manager (who had worked for pro-Russian interests in Ukraine and who shared campaign data with a suspected Russian agent during the campaign) and two campaign advisers (one of whom was tipped off about possible Russian hacking and another of whom traveled to Russia during the campaign). In other words, it involved investigating clear links to Russia at a moment when Russia was understood to be trying to influence the 2016 election. Is this spying on Trump? Trump says it was — though the evidence has always shown only that members of his campaign were the targets.
It’s important to recognize that Trump was alleging that he was being unfairly targeted by authorities at the very outset of his presidency, with his allies only later backstopping his claims with narratives intending to bolster his point. The central narrative on the right that aims to wave away the Russia probe, for example, centers on text messages between two FBI officials that emerged months later. That they included disparagement of Trump was meant to demonstrate that the investigation was politically motivated, but an investigation by the inspector general of the Justice Department found that to be unwarranted. (Durham and his then-boss attorney general William P. Barr objected to that characterization but in the years since Durham’s offered no evidence to undermine it.)
This is critical: For many, the starting point is that Trump was spied upon and details like the ones offered by Durham are fit into that narrative. It’s not that Durham suddenly showed that Trump was spied upon. It’s that Trump’s allies want to prove that he was spied upon and that Durham — one could assume knowingly — gave them spotty fodder to do so.
In the past few days after the Durham filing and, in particular, after the inaccurate spin put on the filing by former Trump staffer Kash Patel, Fox News has been choked with former Trump staffers and hangers-on clamoring to claim that Clinton’s campaign hacked Trump Tower or the White House or various iterations thereof. In lieu of parsing the Durham filing to identify its gaps, Fox News pushed forward in heavy coverage of the narrative about the filing.
And, of course, the fact that Fox News rushed forward while other networks didn’t is seen not as Fox News bringing on Trump allies to present a pro-Trump story line but, instead, of bias by those who didn’t echo Fox’s presentation.
Enemy of the people !!!! pic.twitter.com/bPBFSapj4H— Catturd ™ (@catturd2) February 15, 2022
Did the FBI spy on Trump’s campaign when it was investigating possible ties to Russian actors? If you think that investigations into Russia-linked individuals constitute spying on the campaign then you will answer yes.
Did the Clinton campaign infiltrate the White House network to spy on Trump? No. Did someone linked circumstantially to the Clinton campaign use data collected and analyzed by third parties to suggest a potentially nefarious (and ultimately empty) claim about Trump’s business communicating with a Russian bank? Yes.
Is that spying on Trump? Once again, your answer to the question probably depends less on what you think about “spying” than what you think about Trump.