Last weekend, The Washington Post reported that FBI Director Kash Patel had assigned agents in the San Francisco field office to review the counterintelligence files of a case involving Representative Eric Swalwell and a suspected Chinese spy, Christine Fang, from 2011 to 2015. Swalwell is running for governor in California, and the move represents a new phase in the weaponization of federal law enforcement seeking to smear, if not investigate and prosecute, the administration’s opponents (Swalwell was on the so-called “enemies list” of people in Patel’s 2023 book, Government Gangsters). In this regard, the Trump administration is taking yet another page from the authoritarian playbook – but like many of its other moves, it has the potential to backfire, including on our own national security.

Most foreign intelligence officers operate under diplomatic cover: They send spies here as, say, the Cultural Attache to their embassy, or to the U.N. The benefit of being under diplomatic cover is that if these officers get caught, there’s not much the U.S. can do to them: The harshest measure is for the government to declare these diplomats persona non grata (PNG), and to send them back home. (Of course, our CIA officers who work under diplomatic cover get the same benefit.) The downside is that it’s easier for the country’s counterintelligence service (in the U.S., that’s the FBI) to track them, since there is a limited universe of individuals to monitor and spies typically work under “slot succession,” meaning that once a post is designated to an intelligence officer, it stays that way, i.e., you always know that the “Cultural Attache” is actually that country’s James Bond.

That’s why foreign intelligence often uses NOCs, individuals with “no official cover” – they might pose as journalists or business people, giving them more opportunities to interface with targets and making them less likely to be detected by counterintelligence. Russia runs these kinds of operations – you might recall Maria Butina, a “student” and “journalist” who was the darling of the gun-rights lobby and hobnobbed with people like Donald Trump, Jr. and Louisiana Governor Bobby Jindal before she was arrested in 2018 for espionage. These “political influence operations” offer spies the opportunity to forge relationships with people who may end up in positions where they will have the power to shape policies favorable to the foreign government. The access in private settings also allows spies to assess whether the people they are meeting have vulnerabilities that might make them susceptible to be recruited as spies themselves.

That appears to be what Fang was up to. U.S. officials believe Fang was working with China’s intelligence service, the Ministry of State Security (MSS), in a political influence operation to develop relationships with up-and-coming politicians. U.S. intelligence officials say that Fang used “campaign fundraising, extensive networking, personal charisma, and romantic or sexual relationships with at least two Midwestern mayors” to infiltrate political circles. It was in this milieu that Fang met Swalwell: She participated in fundraising for his 2014 reelection campaign and also referred an intern hired by his office. A U.S. official later noted that Fang was one of “lots of agents” operating on behalf of the MSS at the time – by 2019, the threat posed by China’s political influence campaign was urgent enough that the FBI actually created a special unit to counter the country’s efforts to influence state and local politics.

All of this is to say that a Chinese spy making contact with Swalwell – especially given his position at the national level – is really not surprising. What’s more important is what happened next. By 2015, the FBI became alarmed enough with Fang’s activities that it contacted Swalwell, as well as numerous other state and national officials, to let them know he was being targeted. This is known as a “defensive briefing,” and is noteworthy: It reveals that the focus was on Fang, and in “neutralizing” (to use the intelligence lingo) her activities by exposing her to the people she was targeting. If the FBI believed that Swalwell was somehow in cahoots with Fang or otherwise engaging in unlawful activity, they would have placed him under direct investigation and monitored him as part of an espionage investigation, not shown their cards so early. (Swalwell was never charged with any crimes.) A good example of this approach is the case of Senator Bob Menendez, who last year was sentenced to eleven years in prison for, among other charges, acting as a foreign agent for Egypt. 

Also noteworthy is that following the defensive briefing, Swalwell immediately ceased contact with Fang and assisted the FBI by providing any information he had about her. As a counterpoint, consider the case of Carter Page, who was targeted by Russian intelligence in 2013: He, too, was alerted by the FBI. But, he continued to maintain contact, even after he knew they were spies. In 2016, the Trump campaign was also given a defensive briefing about Russia. No one alerted the FBI to Russia’s outreach after, and those who were asked about it, lied. In Swalwell’s case, the FBI’s decision to neutralize Fang worked – soon after it began providing defensive briefings to her targets, she abruptly left the country, likely because she learned that the FBI was investigating her (remember, unlike spies under diplomatic cover, she was subject to arrest and jail).

All of this highlights why releasing the files on Fang and her contact with Swalwell would not serve any national security purpose, and would likely only undermine it by helping China. A national security case file on an intelligence target will include lots of information that would be valuable to foreign adversaries – like how the FBI was able to identify one of its NOC agents, the types of investigative techniques it was using (like confidential sources or electronic surveillance), and what it has learned about China’s tactics and objectives. Even if the purpose is “only” to embarrass Swalwell – indeed, perhaps especially if the goal is to embarrass Swalwell – the FBI is likely to under-redact information that might reveal sources and methods and potentially even compromise other ongoing investigations. (As we know from the Epstein files, redaction is not the FBI’s strong suit under Patel.)

It also begs the question of what, exactly, our national security priorities are. I’m not sure if Patel has noticed or cares, but we are at war with a hostile foreign power – Iranian spies are an active threat in the United States as we speak. (In fact, the Iranian intelligence service recently hacked and released Patel’s personal email.) Even when the FBI is fully employed, only about 25-30% of its overall agent force are working counterintelligence targets (against multiple countries). With the mass firings and resignations since Trump took office, the Bureau is not even at full capacity. On top of that, among those whom Patel has fired is the counterintelligence team focused on Iranian threats. Assigning agents who could be backfilling this role to chase personal and political vendettas is not a recipe for keeping America safe.

On the legal front, Patel’s move violates the Justice Department’s own internal policy against taking actions within 90 days of an election (California’s gubernatorial primary election takes place on June 2) and possibly also violates the Privacy Act of 1974 and the First Amendment. Swalwell has issued a cease-and-desist letter to Patel on these grounds. If he’s unsuccessful (as I suspect he will be), the counterintelligence file on Fang’s contacts with him will come to light – but the only party the FBI will end up harming is the United States.