The FBI should never have opened a comprehensive investigation into possible ties between members of Donald Trump’s team and Russia during the 2016 election, according to special counsel John Durham.
There are other types of investigations the FBI can initiate, and having a comprehensive investigation allows agents to investigate into the Trump campaign’s ties to Russia using more sophisticated surveillance techniques.
This is how a thorough FBI investigation differs from a preliminary investigation, which Durham has questioned in the Trump-Russia investigation.
Preliminary investigations have lower entry requirements than full investigations, which also precludes the use of more intrusive instruments like the Foreign Intelligence Surveillance Act (FISA) warrants and other forms of court-authorized surveillance by the agents.
Specifically, according to the FBI’s Domestic Investigations and Operations Guide, during a preliminary investigation:
- An agent must have “information or allegation” of a federal crime being committed or about to be committed.
- It requires a relatively low threshold to open.
- The investigation can only be open for six months without the agent running the case taking one of three actions: seeking a renewal, converting it to a Full investigation if authorized, or closing the case.
- Cannot use intrusive tools like FISA and other electronic surveillance.
A full investigation is more extensive and agents have access to more tools. During a full investigation:
- An agent must have an “articulable factual basis” that a crime has or is about to occur in order to open the case. It’s a relatively high standard to open requiring more than merely an allegation of criminal wrongdoing.
- No timeline for the investigation, but typically assessed by FBI supervisors annually to determine whether it should remain open.
- All lawful tools, including intrusive surveillance allowed.
Bottom line: If the FBI had launched the Trump-Russia investigation as a preliminary rather than a complete one, they would not have been able to employ the variety of FISA instruments that later came under review by Durham, the Trump campaign, and the DOJ’s inspector general. Additionally, opening the probe as a preliminary inquiry would have restricted the material the FBI could gather as it looked for possible connections between Trump team members and Russia.