Sometime before the collapse of the German civilian government in the summer of 1917, chancellor Theobald von Bethmann-Hollweg became aware that his phone had been tapped. According to the German diplomat Kurt Riezler, during calls Hollweg would scream into the line—"What Schweinhund is listening in?"—whenever he heard the click. (Schweinhund is the German word for pig-dog.)
Hollweg took this amusing approach because there was little else he could do. As the historian Paul Johnson explained in his classic work Modern Times, “state of siege” legislation had given the German military the legal authority to tap the phones of civilians, including chancellors. By July 1917 Hollweg was out as chancellor, and control of the German state had fallen to German General Erich Ludendorff. But Johnson argues that the end of civilian rule in Germany, for all intents and purposes, came much earlier.
The anecdote is important because, first, it shows who was really in charge of Germany for much of World War I; second, it raises pertinent questions regarding the prevailing methods of the surveillance of citizens in the United States.
It’s unlikely U.S. intelligence agencies truly bugged candidate Donald Trump in the lead-up to the 2016 presidential election, as the president claimed. But the phones of some members of the Trump Campaign, including campaign manager Paul Manafort, were bugged. There is also evidence that the FBI and Department of Justice abused the Foreign Intelligence Surveillance Act to obtain warrants to authorize electronic surveillance on Carter Page, an American consultant and one-time foreign policy adviser to Trump. Newly released court documents suggest that the FBI relied almost solely on opposition-funded research (the so called "Steele dossier") to obtain a warrant to spy on Page.
Perhaps most serious, the FBI used a plant to
spy on investigate the Trump Campaign in the lead-up to the 2016 election. Some of these counter-intelligence operations appear to have been driven by former CIA Director John Brennan, an Obama loyalist who recently accused the president of treason. Finally, there were the findings of DOJ Inspector General Michael Horowitz, who found that former Acting FBI Director Andrew McCabe made unauthorized leaks to the media and lied about it “lacked candor” while being questioned by federal investigators, which led to McCabe’s termination. Horowitz also uncovered the chain of texts between FBI agent Peter Strzok and former FBI lawyer Lisa Page, which some say show a plot within the FBI to stop Trump’s election.
In normal times, any one of these actions—let alone all of them —would raise grave concerns among civil libertarians and U.S. media. Yet these are not normal times (as former President Barack Obama recently observed), and media have largely avoided the ethical and legal questions surrounding the intelligence community's conduct. The Pulitzer Prize-winning investigative journalist Seymour Hersh recently called the counter-intelligence ops against Trump "the most missed story of all time," in an interview with the Columbia Journal Review.
Like the German military’s tapping of chancellor Hollweg, it’s quite possible all of these counter-intelligence operations were perfectly legal. Then again, it’s possible they were not. The legality of the operations depends largely (though not entirely) on the motivations behind them. If the ops were politically motivated, they would be illegal. On the other hand, if the operations were ordered as part of an effort to, say, investigate or prevent a foreign entity attempting to hack or compromise U.S. elections, they would be legal, assuming other laws and procedures were followed.
This explains the outrage following Trump’s press conference with Russian President Vladimir Putin in Helsinki. By stating that Russia did not hack the U.S. election, Trump was largely undermining the raison d'etre of the clandestine operations against his campaign. If Russia was not meddling in U.S. elections, what reason would U.S. intel agencies have to infiltrate or listen to his campaign?
Spying on a presidential campaign is not unprecedented, but it’s pretty serious. It’s not hyperbole to say that more than just careers are at stake. Without Russian meddling in the election, which almost certainly did occur, the presumed legality of intel operations against the Trump Campaign vanishes. So long as the Russian hacking narrative remains, U.S. intel leaders possess a certain amount of plausible deniability, wherever the scandal leads.
For the time being, where one comes down on Russiagate appears to depend largely on who one trusts more: President Trump or U.S. intelligence leaders. Strong opinions on the issue abound, but the truth is the American public doesn’t have enough facts to reach a sound conclusion on the matter. (That needs to change, by the way.)
If Special Counsel Robert Mueller can prove Trump colluded with the Russian government, it’s difficult to see how Trump's presidency survives. But if no evidence of collusion is uncovered, U.S. intelligence officials will have a lot to answer for, having initiated a vast counterintelligence operation—an operation which very well may have been spawned by his political opponent and intelligence leaders hostile to the president.
Whether the scandal goes down as Russiagate or Intelgate, the event will have done great damage to the trust in America’s political system and institutions. There are no winners when the American system becomes Game of Thrones.
Jonathan Miltimore is the Managing Editor of FEE.org. His writing/reporting has appeared in TIME magazine, The Wall Street Journal, CNN, Forbes, Fox News, and the Washington Times.