March 5, 2017

"FISA Is Not Law-Enforcement – It’s Not Interference with Justice Department Independence for White House to Ask for FISA Information."

The invaluable legal analysis of Andrew M. McCarthy, checking the work of the NYT.
According to [the NYT report "Trump, Offering No Evidence, Says Obama Tapped His Phones"], a Trump official said that White House counsel Donald F. McGahn II is “working to secure access” to what is believed to be “an order issued by the Foreign Intelligence Surveillance Court authorizing some form of surveillance related to Mr. Trump and his associates.” Presumably, this means the Trump White House is seeking to review the Justice Department’s applications for Foreign Intelligence Surveillance Act (FISA) surveillance of Trump associates, and perhaps Trump himself, from June and October 2016, including any orders issued by the FISA court – as my post explains, it has been reported that the Obama Justice Department’s June application was denied, but its October application (which apparently did not name Trump) was granted.   
The NYT report makes assertions about the law — "Any request for information from a top White House official about a continuing investigation would be a stunning departure from protocols intended to insulate the F.B.I. from political pressure" — that McCarthy debunks. McCarthy is adamant:
[A] FISA investigation is not a “law-enforcement matter” or “case.” A law-enforcement matter is a criminal prosecution. That is the mission in which there should never be any political interference because it involves the strictly legal matter of whether there is evidence that penal statutes have been violated. In such a situation, White House intrusion would be political interference in a proceeding that is essentially judicial in nature, involving the potential removal of liberty from a citizen.
McCarthy has great expertise in this area and the NYT should be powerfully embarrassed to botch things this badly — whether the mistakes are from ignorance or from a deliberate attempt to deceive. I'm not an expert in this area, so maybe McCarthy is wrong and the NYT is right. The NYT had better scramble to explain itself if it's right or come clean if it's wrong.

Meanwhile, this gets my "fake news" tag.

204 comments:

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Bruce Hayden said...

Not quite sure why the FBI would have been involved with the FISA warrants - typically that is NSA, DoJ, and the AG. Except maybe that any wiretapping was likely done on US soil.

I do find FBI Director Comey's reaction interesting. I just don't see him signing off on wiretapping Trump, his campaign, and his people. Or, really siding with the Dems here. And, yet, it seems to be the case. Maybe. Or, maybe there is something else going on that we don't know of yet. Currently, it looks like Gen Flynn had his talks with the Russian Ambassador tapped under FISA, and then illegally disclosed (in violation of the FISA Minimization requirements - esp strict since he is a US Person in the US). I expect that there is a standing FISA warrant for the Russian ambassador's phone, and probably has been since FISA was first enacted 40 years ago. And Minimization should probably have required that his identity be hidden and the contents deleted once it was determined, upon first listening to the conversations, that no immediate threat to the physical security of the US was discussed.

We also know that the Obama/Lynch DoJ apparently tried three times to get warrants to wiretap Trump, his campaign, or his people, succeeding the third time (on the second FISA attempt). What we don't know is what was in those warrant applications and supporting affidavits, and indeed, whether the people swearing them were being completely honest and disclosing all that they knew. And, we don't really know whether anything was done with the one that was granted. Indeed, for all that we know, the target may have been the computers used for financial transactions, looking for links to Russian businesses. Let me also note that the post-election memo by AG Lynch opening up raw FISA data to other agencies may actually be as benign as it is claimed. Or, it could be what its critics claim - a way to get around FISA Minimization requirements.

Which leads me to the thought that we may have several somewhat unconnected, and possibly unrelated, facts being put together by Trump for the purpose of countering the bogus Russian coordination claims against him, that have far less substance, but more coverage in the MSM. There really may not be as much fire, as much wrongdoing, as he suggests. He does tend to exaggerate. But, he does have the advantage of his people being able to get to the real evidence, and that, in the end, he will likely have some scalps on his wall, since crimes do appear to have been committed by govt employees working on behalf of the Dems and/or the Deep State. Plus, there is very likely a paper trail that can be followed. Which gets to the Congressional investigations, where the Dems get their look into Russian involvement, and, in return, the Reps get their look into the leaking of supposedly minimized and other classified information, and, now, the extent of the wiretapping of Trump, et al. Makes you almost think that everyone in the seats of power in DC knows what has really happened, and we are only finding out when convenient for them.

readering said...

Trump's been out of the casino business for years, although his name didn't immediately come down off all of them after he lost them through insolvency. His main cyber security comes from not knowing how to get on the internet from a desktop.

Hagar said...

If James Clapper says there were no Federal 'wire taps' in the Trump Tower, I expect that to be true. That is, the conversation intercepts were not accomplished with 'wiretaps, even in quotation marks, but by other means, and/or they were made outside the Trump Tower premises, or someone else did the Trump tapping and Clapper tapped them.

Michael K said...

Trump's security is very tight, contrary to lefty trolls' opinions, and he may have direct evidence of who placed bugs. Also the counterintel person at DoJ is an Obama holdover and may well be the one who leaked and did the FISA warrant,

I know the FBI does prepare FISA warrant requests as my daughter, who is a lawyer and FBI agent, did it in the past. Maybe counterintel people not in the FBI can do it too.

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