Treason for Fun

http://lawnewz.com/high-profile/yes-obama-could-be-prosecuted-if-involved-with-illegal-surveillance/

 

President Trump claims that the Obama Administration instituted Title III electronic monitoring through the FISA court against Trump, during the campaign. Various Obama apologists have not denied the allegation but pointed out that then President Obama had nothing to do with ORDERING the underlying Title III investigation. How come in a Republican administration malfeasance of the lowest level civil service employee, thousands of miles away from the Oval Office, is an indication of Republican incompetence. While in a Democratic administration malfeasance of the Attorney General who is in and out of the Oval Office on a weekly basis, is not worthy of discussion?

 Andrew C. McCarthy points out in the attached article, with follow up links that it as early as June 2016 that Trump associates involved in his business dealings and campaign were the target of a Federal investigation. Even then there were indications that the Obama Justice Department was pursuing FISA electronic monitoring warrants.   Special-prosecutor-Trump-campaign-Russia-Jeff-Sessions-recuse-ambassador-Sergey-Kislyak by ANDREW C. MCCARTHY March 3, 2017, 4:00 AM. According to McCathy the Justice Department applied for and was turned down for a FISA warrant and was turned down, they reapplied and were turned down once again because the warrant was too broad. The third time was a charm with no indication of the outcome.

I have been involved in Title III investigations, wiretaps, electronic monitoring if I use the terms interchangeably it is because I’m old. I’m no expert and have no insight into the rarefied atmosphere of a FISA warrant, other that what I can gather from reading. Never-the-less the topic interests me, and I have followed the twists and turns of FISA versus a typical criminal Title III.

AS early as 2008 Raymond Kelly then NYPD Police Commissioner exchanged letters and charges with Michael Mukasey, Attorney General regarding NYPD access to FISA Courts and slow turn around time on FISA applications. This controversy spilled over to the newspaper: http://www.nytimes.com/2008/11/20/washington/20terror.html. If memory serves and even more comprehensive story can is in the Wall Street Journal, during the same period. It is behind the WSJ paywall.

A consistent story put out by the MSM is that the FISA court is a rubber stamp and that out of thousands of applications only eighty-eight have been rejected. McCarthy, states that two of the rejected FISA warrants targeted Trump or people associated with him. I commented about how misleading this numbers game is in July 2016, based on my experience with search warrants.

Wiretaps, Yada, Yada, Yada

I would add this, any time a Magistrate, at whatever level, agrees to review a search warrant affidavit and that is essentially what a FISA or Title III warrant is, he/she is at the mercy of the affiant, the person that drafted or swears to the facts therein. All the judge has to rely on is contained, “within the four corners of the affidavit.” A dishonest affiant, Deputy Attorney General, Assistant United States Attorney, District Attorney can lie, shade, prevaricate and swear to facts contained herein with malice in their heart and the Judge is at their has no way of knowing.

So, did the Obama administration target Trump and company for political purposes? It is early days yet, but I would say probably. Can it be proved? That remains to be seen. Did Obama order it? Probably not directly. Is he still responsible? Under conspiracy law, I would say yes. Am I a lawyer. Nope. Does my opinion count? If you are going to Starbucks with my opinion and a thirst for coffee, you better bring cash. Okay, I’ll back up my assertions with the following observations:

  1.  The origins of the original investigation are obscure but could be cleared up by both the FISA application, the case report, or a participant in the process. I would not expect that the administration manufactured the investigation. However, once a FISA application is submitted for review, there is no doubt that it have found its way to the upper reaches of the Justice Department. Every FISA warrant ends up at Main Justice for review (see Kelly/Mukasey). The climate was such within the Obama administration that it wasn’t necessary for Obama to give an order to turn a legitimate criminal/terrorism investigation into a political witch hunt.
  2. History teaches us that the Boss had better be careful in how he expresses himself. Henry II comes to mind.  Upon hearing reports of Becket’s actions, Henry is said to have uttered words that were interpreted by his men as wishing Becket killed. The king’s exact words are in doubt, and several versions have been reported. The most commonly quoted, as handed down by oral tradition, is “Who will rid me of this troublesome priest?”.  Historian Simon Schama,  accepts the account of the contemporary biographer Edward Grim, writing in Latin, who gives us “What miserable drones and traitors have I nourished and brought up in my household, who let their lord be treated with such shameful contempt by a low-born cleric?”[Wikipedia Thomas Becket]  Like the “Rolling Stones” song “You Can’t Always Get What you Want … But You Get What You Need” Henry II didn’t order the killing, but staff provided it anyway.
  3. Order in the way the Obama apologists are using it implies legal authority. None of the articles I have come across are implying there was any legal or legitimate authority to pursue a FISA warrant. Or once obtained, to widely disseminate the information gained. Since disdain for the law and extralegal maneuvering are a hallmark of the Obama Administration, this is just a natural progression.

4. I suspect that if two of the greatest investigators that ever came down the pike were to look at the three FISA affidavits, they could resolve a lot of the controversy. But Burt and Ernie do not possess the necessary security clearance. What would such an inspection reveal? Only a small number of investigators and attorneys have access to the FISA Courts. I would be willing to bet that Judges involved in FISA affidavits can probably identify the author of the affidavit just by the style and content. Notice I singled out the Judge, this means by the time the Judge sees it,  the original affidavit has been vetted and rewritten with additions and deletions from various reviewers. I believe that such a review of the third FISA warrant would show it was not drafted by the author of affidavit #1 and did not bear the review idiosyncracies of the first two affidavits. The implication being that affidavit written outside of normal channels by people familiar with the process but not an intimate of the process. Find the writer, if the writer isn’t part of the normal process, politics may provide the answer. Unfortunately, Burt and Ernie will never be allowed to render an opinion.

5.  The FISA law is specific if an American is identified speaking on the target phone, e-mail, etc. The content of the conversation must be destroyed and the American’s identity withheld. In wiretap speak this is called minimalization, and it works like this (at least in dope cases). The phone rings and Juan says to Julio that he need fifteen kilos of coke delivered to Carlos. This conversation is a dirty call, and it will be recorded, transcribed and eventually appear in evidence at trial. The next time the phone rings it is Juan’s fourteen-year-old daughter Betsy talking to Sue about the latest middle school gossip. This conversation is not subject to the intercept order, and as soon as the monitoring agent discovers this, monitoring of the conversation stops, there is no recording. As the conversation progresses, the monitor is allowed to listen in periodically to ensure that the topics and persons have not changed.

Sometimes subjects of wiretaps speak in code, or the conversation is not immediately apparent to be innocent or is downright guilty from the inception. A monitoring agent would be justified in recording this conversation until the officer determines that the speaker is an American, then the monitoring must stop, and the recording sequestered. Under FISA rules, the government must report to the court that they inadvertently monitored an American, but the conversation gives them probable cause to believe that the individual is engaged in espionage. It is up to the judge to decide the next step. Those discussions involving the American are classified and sequestered.

6. The case agent and attorneys for the government must make periodic appearances to report the progress of the electronic monitoring. Electronic monitoring has a beginning and ending date, a list of numbers, or addresses and individuals targeted. As the investigation progresses, it is not unusual for additional phone numbers and targets to be added. The judge has the authority to shut down unproductive numbers or extend a successful probe.

7. The final piece of the puzzle, as pointed out in Law News, is that the information gained from the electronic monitoring is closely held. Speaking from my experience on Title III investigations, all personnel involved in the investigation had to be “read in.” Before information about the investigation is shared, a new participant must read the affidavit and underlying file plus any instructions from the court and sign off that he had done so. Once an agent is read in, It hen he could discuss the investigation with all the other people assigned to the investigation. But that left a whole host of individuals that can not be informed. Such as the Police Chief or other investigators or civilians who were not authorized to receive the information. The requirement for accountability and “need to know” is likely to be the hurdle that the Obama administration cannot clear. Apparently, leaks regarding the FISA warrant or the results of the investigation are widely spread among select intelligence, law enforcement, and prosecutorial units. If the leaks are tracked back to specific offices or individuals then it doesn’t take a lot of effort to check and see if they were authorized to possess the information. Individuals might have the security clearance to possess the information, but this is a two parter clearance and authorization. The authorization is part of the court record.

Can this be unraveled? Yes, and I would expect relatively quickly. I believe that the Obama Administration in its animus for the incoming Trump Administration went too far in spreading its poison pills through the bureaucracy. In the waning days of the Obama administration, the administration attempted to widen the distribution of classified material. That may have been the administration’s prerogative. FISA has separate requirements for the handling of material coming from court authorized investigations. Those requirements are still in place, so mishandling of FISA material is still a crime. How many of these Obama minions can demonstrate that they followed proper procedure to qualify to receive FISA material? How many, in releasing the material can point to a justification found in FISA?

Police and prosecutors sometimes forget that any time is more time than some people can stand to do. A two-year sentence doesn’t seem like much, and it isn’t to a mainline con. To a middle-class civil servant used to getting as close to a free ride as is possible in this society, two years is a lifetime. I’ve got news for you ten days in Washington D.C. Federal lockup awaiting a detention hearing is too much for these guys Arrest them, detain them, flip them, fire them and imprison them and you’ll be amazed at the level of cooperation the government will receive.

It is time to draw a distinction between dirty politics, sedition, and treason. The political mindset that allows one to gloss over the difference between them is scarey.