Counterintelligence is long, hard work. Investigators need time to string along suspects — seeking the who, what, when, where and why of the case. The Federal Bureau of Investigation tries to build 3-D chronologies of who did what to whom. Agents usually follow the money, the best evidence. That’s how the feds got Al Capone: for tax evasion.
The F.B.I. director, James B. Comey, is running the most explosive counterintelligence case since Soviet spies stole the secrets of the atom bomb more than 70 years ago. Some of those atomic spies didn’t speak Russian: They were Americans. We now know that President Vladimir V. Putin of Russia attacked American democracy by meddling in the 2016 election. Did he enlist American mercenaries?
A tantalizing clue came at the House Intelligence Committee hearing on Monday.
First, Democrats named names: the former Trump campaign director, Paul Manafort, dismissed shortly after the F.B.I.’s investigation started in late July; then the former Trump national security adviser, Michael T. Flynn, who lost his job last month. Both appear to have had pecuniary ties to Mr. Putin’s allies — in Mr. Manafort’s case, a politician and an oligarch; in Mr. Flynn’s case, RT, the news and propaganda network.
Then Mr. Comey was asked to explain the Foreign Agents Registration Act.
“Sure,” the director said.
The act, known as FARA, is intended to prevent espionage or illicit foreign influence on American public opinion, policy and laws. It requires Americans acting as agents of a foreign government to register with the Justice Department. A willful failure to register can be a crime.
If members of Team Trump were paid by Russians to exert political influence, they should have registered under FARA. In fact, Mr. Flynn belatedly filed a FARA report two weeks ago: He received $500,000 as an agent for the government of Turkey during the Trump campaign. According to The Associated Press, Mr. Manafort failed to report work he did a decade ago for a Russian billionaire closely allied with Mr. Putin.
FARA is a potentially powerful but rarely enforced law. It began when President Franklin D. Roosevelt called the F.B.I. director J. Edgar Hoover into the White House in 1936 and asked him for “a broad picture” of “subversive activities in the United States, particularly Fascism and Communism,” according to a Hoover memo.
Mr. Hoover used wiretapping to gather intelligence — but Congress had outlawed it. He interpreted the law his way: If it was secret, it was legal. But he still could not use it as evidence at a trial. The solution was FARA. The law, passed in 1938, allowed the F.B.I. to arrest those suspected of spying without prosecuting them for espionage. If they failed to register, Mr. Hoover could try to lock them up.
In May 1941, the bureau charged Moscow’s economic and commercial chief in New York under the law. The man, Gaik Ovakimian, won diplomatic protection and returned to Moscow. But he was Stalin’s chief spy in the United States. It took the F.B.I. a decade to confirm that.
Indeed, the Justice Department seldom proves that violators of the registration act are secret agents of a foreign power: Just five people have been convicted under the law in the past 50 years. The Government Accountability Office, the oversight arm of Congress, has warned repeatedly since the Watergate era that people were acting as foreign agents without registering, and registered agents were concealing their real work. No “comprehensive enforcement strategy” exists, the Justice Department’s inspector general reported in September.
The F.B.I.’s national-security division has vowed to establish a FARA strategy starting on March 31. The investigation into possible Russia ties to the Trump campaign may well turn on the enforcement of that arcane law.
The thoroughness of the F.B.I. investigation is all the more important now amid growing evidence that Congress is unwilling or unable to conduct an impartial investigation. That was made clear on Thursday when Representative Devin Nunes, a California Republican who is chairman of the House Intelligence Committee, disclosed that American intelligence agencies may have “incidentally” collected information about Trump transition team members.
Democrats said that Mr. Nunes’s release of classified information appeared intended to buttress Mr. Trump’s widely disputed accusation that he had been “wiretapped.” Representative Adam Schiff, the ranking Democrat on the committee, questioned Mr. Nunes’s objectivity, adding that “there is more than circumstantial evidence” that the Trump team colluded with the Russians during the 2016 election.
Who, then, is going to handle this keg of Kremlin dynamite? If a case proceeds, the first step may well be taken under FARA. And if that case goes to court, the F.B.I. will need an impartial overseer. But the ability of Congress to investigate fairly is dubious. Attorney General Jeff Sessions, who oversees the F.B.I., has recused himself owing to his own contacts with the Russian ambassador. The best answer may be an independent prosecutor, a step Democrats want but Republicans oppose.
Without one, Round 2 of this contest could go to Team Putin. Be prepared for a long battle: Mr. Comey warned on Monday that the Russians will be back for the next election.
Tim Weiner, a former national security correspondent for The New York Times, is the author of Enemies: A History of the F.B.I. and One Man Against the World: The Tragedy of Richard Nixon.