The FBI’s own guidelines restrict the deployment of informants to spy on Americans, such as the bureau’s decision to plant a human source among Donald Trump’s presidential campaign aides.
The cautionary regulation is contained in the FBI’s nearly 700-page Domestic Investigations and Operations Guide. The restrictions are prompting national security analysts to say the FBI should have heeded its own rulebook, which encourages alternatives to human spies in any investigation, much less one into a presidential political campaign.
The FBI should have focused, they say, on Russian agents who were meddling in the election by hacking computers and by spewing false information on social media.
Instead, the bureau, during President Obama’s administration, took the momentous step of recruiting a national security academic, Stefan Halper, to spy on Trump associates by striking up what seemed to be innocent professional contacts.
Mr. Halper was a “confidential human source,” an official category of spy that is regulated by the FBI’s domestic investigations directive. The FBI completed an updated document in 2013 and posted online a redacted version in 2016.
Human sources are regulated under a program called “Otherwise Illegal Activity,” or OIA. It is called “otherwise illegal” because spying on Americans would be against the law if, as the policy says, the spying is “engaged in by a person acting without authorization.”
Thus, the protocol says the confidential informant must be approved by the Justice Department, meaning an Obama political appointee might have given the go-ahead in summer 2016.
The guideline says a human source should be used only in “limited circumstances,” which includes “when that information or evidence is not reasonably available without participation in the OIA.”
The rules also say that “otherwise illegal activity” should be “limited or minimized in scope to only that which is reasonably necessary.”
A U.S. official told The Washington Times that the bureau should have targeted Russian intelligence officials first to determine whether there was evidence that they were contacting or colluding with Trump people before authorizing domestic spying by what the source called an “agent provocateur.”
John Dowd, President Trump’s former defense counsel, said the FBI had a duty to notify, not spy on, Trump people.
“If you are concerned that the Russians are trying to penetrate a campaign or meddle with the election campaign process, you include the candidates and their top security professionals in that effort,” Mr. Dowd told The Times.
Obama Justice Department officials considered informing the Trump campaign that it was the target of Russian intelligence but opted not to, according to the final majority Republican report from the House Permanent Select Committee on Intelligence.
The committee report recommended: “When consistent with national security, the intelligence community should immediately inform U.S. presidential candidates when it discovers a legitimate counter-intelligence threat to the campaign, and promptly notify Congress.”
J.D. Gordon, a former Pentagon spokesman and Trump campaign national security adviser, rejected Democrats’ arguments that the FBI informant was protecting the Republican candidate.
“Obama associates are misleading Americans about FBI surveillance of the Trump campaign,” he said. “If the FBI merely wanted to ‘protect’ the campaign and avoid tipping off the Russians, as we’re being told, they should have informed Mr. Trump of specific allegations about suspected individuals before the surveillance began. Failing that, it looks like one large sting-and-smear operation against the entire campaign, including Mr. Trump.”
British spy connection
James B. Comey, whom Mr. Trump fired as FBI director in May 2017, tweeted a defense of using a human source. Mr. Halper’s role was approved under Mr. Comey’s watch.
“Facts matter,” Mr. Comey tweeted. “The FBI’s use of Confidential Human Sources (the actual term) is tightly regulated and essential to protecting the country. Attacks on the FBI and lying about its work will do lasting damage to our country. How will Republicans explain this to their grandchildren?”
Rep. Trey Gowdy, South Carolina Republican, is the point man for the House Permanent Select Committee on Intelligence for examining classified documents about the spying.
He told CBS News that the disclosures show the FBI was investigating Russian influence and not monitoring the campaign. His assessment is a break from those of a number of other conservatives who ridicule the notion that the Obama administration wasn’t spying on a candidate whom Mr. Obama was working to defeat.
Mr. Halper is a longtime Republican-connected scholar who has performed classified work for the U.S. intelligence community and is tied to Britain’s spy service, MI6, through former director Richard Dearlove. They are partners in the intelligence consultancy Cambridge Security Initiative.
Another MI6 link to the Trump-Russia investigation is former spy Christopher Steele. With funding from the Hillary Clinton campaign and the Democratic Party, Mr. Steele wrote an anti-Trump dossier and fed his Kremlin-sourced information to the British government and the FBI.
Mr. Halper, who opposed Mr. Trump’s election and endorsed Mrs. Clinton, targeted at least two Trump volunteers: Carter Page and George Papadopoulos.
He first encountered Mr. Page at a conference in Cambridge, England, after the volunteer spent a few days in Moscow in early July 2016 during which he delivered a public commencement speech.
Mr. Halper also made a number of contacts with Papadopoulos and paid him for a research paper, according to reporting by The Daily Caller.
Papadopoulos was under FBI scrutiny for making contacts with Russian-connected people in an effort to arrange a Trump-Kremlin meeting, which never happened. He has pleaded guilty to lying to the FBI about when he joined the Trump campaign and his meeting with a Moscow-linked professor from Malta.
The professor told him he heard that the Kremlin owned thousands of Clinton emails, an apparent reference to the 33,000 messages she ordered destroyed by her law firm before investigators could acquire them.
Papadopoulos has not been charged in any conspiracy. Mr. Page has denied under oath any wrongdoing and has not been charged.
What role the Steele dossier played in the FBI’s decision to activate Mr. Halper is unclear. Mr. Steele began feeding dossier charges to the bureau in July 2016.
The FBI planned to pay Mr. Steele $50,000 to continue investigating Mr. Trump, but the agency fired him after he went to Mother Jones magazine with his story of Trump-Russia collusion.
Before Mr. Steele’s firing, the FBI embraced his reporting and used it as the bulk of its evidence to obtain a court order for wiretapping and surveillance of Mr. Page, an energy investor who once lived in Moscow.
The bureau relied heavily on the dossier to obtain three warrant renewals from a judge, taking the surveillance into the fall last year, long after Mr. Page had left the campaign in which he played a minor role and never spoke with Mr. Trump.
Mr. Steele reported an “extensive conspiracy.” To date, none of his collusion charges has been proved publicly. Trump people named in the dossier have called it a work of fiction.