March 5, 2017 6 Comments
There is a lot of breaking news this weekend as the nation learns that a sitting President (Obama) looks to have used the nation’s national security apparatus – which is empowered to protect this nation from foreign enemies and threats – for crass political gain (read “personal gain”). If this is even partially true, this would be Watergate on steroids and irreparably tarnish the Obama administration for all history.
These high stakes may also explain the irrational fear and hate by the democrat leadership we have seen in their scorched-Earth actions since the election. Events may be unraveling on them big time, events that started last summer in a very different world.
Let’s begin by setting down a hard and fast rule to blunt the coming weasel words from team Obama. The President runs his administration. The President’s cabinet has some individual authority, but they confirm with the Commander-in-Chief anything that could erupt back on them either legally or politically. No cabinet member – especially the Attorney General – would run near or across legal or ethical lines without concurrence (i.e., cover from) the top person.
To say Obama did not “order” the “wire tap” against the Trump campaign is as ridiculous as it sounds. Note: Trump used figurative parentheses when he tweeted “wire tap”, so read that as meaning “surveillance” legally.
It is not like the Captain of a ship actually “weigh’s the anchor” themselves! Captains order it be done. Or more accurately, it is one step of a process that has been established by the command chain so that when the Captain orders the ship to prepare to “get under way” this action is taken. However executed, the Captain is legally responsible for the people under him, and any mistakes they make. This would include any issues or damage done “weighing” the anchors.
So when someone tries to split hairs about who ordered the surveillance on Team Trump, remember this:
First, as Obama officials well know, under the FISA process, it is technically the FISA court that “orders” surveillance. And by statute, it is the Justice Department, not the White House, that represents the government in proceedings before the FISA court.
The fact is no one would be dumb enough to run afoul of the laws protecting the American People from our intelligence apparatus without top cover – because these represent very, very serious crimes. So let’s stop pretending AG Lynch did this on her own. If this happened, it was all coordinated.
We also need to start with specifying which laws were broken, and then get to the all critical timeline – because that is where we will discover how thin the ice is under Team Obama.
The best overview of the laws broken is here, and the following excerpts summarize the issues our nation faces. To understand the issues one must understand the very narrow and special role the FISA Court and our Intelligence Apparatus plays in our nation. Because of its special powers, it is very restricted on what it can do.
Rather shockingly, no law currently forbids misusing the power of the presidency to spy on one’s adversaries. What the law does forbid is lying to any judicial officer to obtain any means of surveillance. What the law does forbid, under criminal penalty, is the misuse of FISA. Both derive from the protections of the Fourth Amendment itself. Under section 1809, FISA makes it a crime for anyone to either “engage in” electronic surveillance under “color of law” under FISA without following the law’s restrictions, or “disclose” or “use” information gathered from it in contravention of the statute’s sharp constrictions.
Emphasis mine. As we deal with this explosive situation, remember the core issue. It is not run-of-the-mill political skulduggery (is there any other kind?). It is the criminal misuse of a critical national defensive capability. Liken it to using a military weapon against your political opponent, because that is the nearest and best analogy. If Obama ordered the military to intervene with Team Trump during the election, that would not be much different from using the intelligence powers to intervene. This is not on the same level as using the IRS to target political opponents – not by a long shot.
Why is this the case? Because the FISA court operates outside the US Constitution, and therefore any misuse is much more serious:
FISA, 50 USC 1801, et seq., is a very limited method of obtaining surveillance authority. The reason for its strict limits is that FISA evades the regular federal court process, by not allowing regularly, Constitutionally appointed federal judges and their magistrates to authorize surveillance the Fourth Amendment would otherwise forbid. Instead, the Chief Justice handpicks the FISA court members, who have shown an exceptional deference to the executive branch. This is because FISA court members trust the government is only bringing them surveillance about pending terror attacks or “grave hostile” war-like attacks, as the FISA statute limits itself to. Thus, a FISA application can only be used in very limited circumstances.
Again, emphasis mine. The capability to use our intelligence resources against any entity is restricted to critical national security. These resources are NOT to be applied for other legal matters, such as questionable business interests, hacking computers, etc. This is important because the evidence seems to show Team Obama tried to abuse these resources – and were rebuffed!
FISA can only be used for “foreign intelligence information.” … The only “foreign intelligence information” allowed as a basis for surveillance is information necessary to protect the United States against actual or potential “grave” “hostile” attack, war-like sabotage or international terror. Second, it can only be used to eavesdrop on conversations where the parties to the conversation are a foreign power or an agent of a foreign power. An agent of a foreign power cannot be a United States person unless they are knowingly involved in criminal espionage. No warrant is allowed on that person unless a FISA court finds probable cause the United States person is knowingly engaged in criminal espionage. Even then, if it involves a United States person, special steps must be taken to “minimize the acquisition and retention, and prohibit the dissemination, of non publicly available information concerning un-consenting United States persons.”
This is the crux of Obama’s legal trouble. In order to legally capture information about members of the Trump Campaign (one of which was a sitting Senator), then retain it and distribute it, the reason would have to border on high crimes and treason – not “discussions” or “hacking” or “business transactions”. Even coordinating national policies and treaties with foreign leaders would not rise to the level of urgency required to invoke these intelligence resources.
To summarize, it is Team Obama’s collection, retention and distribution of information protected by the US Constitution that constitute the high crimes here, specifically when it pertains to members of Trump’s campaign, emphasized here:
This includes procedures that require they never identify the person, or the conversation, being surveilled, to the public where that information is not evidence of a particular crime.
Since the Fake News media has been reporting these very same details to the public, and citing current and former Obama administration sources, it is not debatable on whether laws were broken. They were.
Bottom line: this should never have happened:
At the outset, the NSA should have never been involved in a domestic US election. Investigating the election, or any hacking of the DNC or the phishing of Podesta’s emails, would not be a FISA matter. It does not fit the definition of war sabotage or a “grave” “hostile” war-like attack on the United States, as constrictively covered by FISA. It is your run-of-the-mill hacking case covered by existing United States laws that require use of the regular departments of the FBI, Department of Justice, and Constitutionally Senate-appointed federal district court judges, and their appointed magistrates, not secretive, deferential FISA courts.
So how did this happen? How did our extensive intelligence apparatus come to be misused against members of the Trump campaign?
Well, the simplest answer seems to be Team Obama misled the courts:
This raises the second problem: Obama’s team submission of an affidavit to to the FISA court. An application for a warrant of any kind requires an affidavit, and that affidavit may not omit material factors. A fact is “material” if it could have the possible impact of impacting the judicial officer deciding whether to authorize the warrant. Such affidavits are the most carefully drawn up, reviewed, and approved affidavits of law enforcement in our system precisely because they must be fully-disclosing, forthcoming, and include any information a judge must know to decide whether to allow our government to spy on its own. My assumption would be that intelligence officials were trying to investigate hacking of DNC which is not even a FISA covered crime, so therefore serious questions arise about what Obama administration attorneys said to the FISA court to even consider the application. If the claim was “financial ties” to Russia, then Obama knew he had no basis to use FISA at all.
Since Trump was the obvious target, the alleged failure to disclose his name in the second application could be a serious and severe violation of the obligation to disclose all material facts.
President Trump now owns the records of the United States of America. One thing he and his Attorney General (former Senator Sessions) can get their hands on are these affidavits to the FISA Court. If they are as damning as some believe they must be, then Team Obama is going to be in serious trouble.
Remember, back when this all started no one believed Trump would win and be given the keys to all the evidence lockers. Which is why one has to ask why did Team Obama double down in January and push the laws even further?
Team Obama has a responsibility to the FISA Court to not disclose any information on US Citizens accidentally caught up in a surveillance activity, but this is what they began doing in January 2017. This may be the second smoking gun – diligently reported by the Fake News media.
That raises the third problem: it seems the FISA-compelled protocols for precluding the dissemination of the information were violated, and that Obama’s team issued orders to achieve precisely what the law forbids, if published reports are true about the administration sharing the surveilled information far-and-wide to promote unlawful leaks to the press.This, too, would be its own crime, as it brings back the ghost of Hillary’s emails — by definition, FISA information is strictly confidential or it’s information that never should have been gathered. FISA strictly segregates its surveilled information into two categories: highly confidential information of the most serious of crimes involving foreign acts of war; or, if not that, then information that should never have been gathered, should be immediately deleted, and never sourced nor disseminated. It cannot be both.
Recognizing this information did not fit FISA meant having to delete it and destroy it. According to published reports, Obama’s team did the opposite: order it preserved, ordered the NSA to search it, keep it, and share it; and then Obama’s Attorney General issued an order to allow broader sharing of information and, according to the New York Times, Obama aides acted to label the Trump information at a lower level of classification for massive-level sharing of the information. The problem for Obama is simple — if it could fit a lower level of classification, then it had to be deleted and destroyed, not disseminated and distributed, under crystal clear FISA law.
There is much more in the article, so please take the time to read the whole thing.
This is about as open-and-shut as you can get in my humble opinion. All this has been faithfully reported (i.e., corroborated) by the Fake News media – citing sources. Along with the internal trail of documents the government is required to keep, it would seem Team Obama has a real problem on their hands.
So let’s visit the timeline of events (best one can be found here), and recall that when all this started Hillary was a shoe-in as the next POTUS. Therefore she would be able to keep a lid on all the critical internal government documents Team Trump now has unfettered access to.
- June 2016: FISA request. The Obama administration files a request with the Foreign Intelligence Surveillance Court (FISA) to monitor communications involving Donald Trump and several advisers. The request, uncharacteristically, is denied.
Note that the article above identifies a prior attempt to gain surveillance through the normal criminal courts process, before this event. This is one month prior to the RNC and DNC conventions. At this time Trump as POTUS seems to be pure fantasy.
To summarize, reporting indicates that, prior to June 2016, the Obama Justice Department and FBI considered a criminal investigation of Trump associates, and perhaps Trump himself, based on concerns about connections to Russian financial institutions. Preliminary poking around indicated that there was nothing criminal involved. Rather than shut the case down, though, the Obama Justice Department converted it into a national-security investigation under the Foreign Intelligence Surveillance Act (FISA).
In June, the Obama Justice Department submitted an application that apparently “named” Trump in addition to some of his associates. … In any event, the FISA court reportedly turned down the Obama Justice Department’s request.
Both the normal courts and the FISA court reject the administrations requests. These requests should be made public ASAP.
Very few people expected Hillary to lose the election at this stage. Bernie was clearly on his way to being vanquished from the Democrat ticket. The effort in June 2016 is clumsy and quickly abandoned. Hillary has her email problems, but she also looks invincible.
I would note one other event on this timeline, when former President Bill Clinton tried to secretly meet with Obama’s AG, Loretta Lynch:
Attorney General Loretta Lynch said she regrets her controversial meeting over the summer with former President Bill Clinton, saying she should have recognized ahead of time how it would be perceived by the public.
Mrs. Lynch had met with Mr. Clinton privately after the two wound up on the same airport tarmac in Phoenix on June 27, just days before FBI Director James Comey would announce that he would not press charges against Hillary Clinton over her private email server.
AG Lynch is the only person authorized to make FISA court requests. Coincidence?
Anyway, nothing happens for months, until …
3. October: Podesta emails. In October, Wikileaks releases the emails of Clinton campaign chair John Podesta, rolling out batches every day until the election, creating new mini-scandals. The Clinton campaign blames Trump and the Russians.
4. October: FISA request. The Obama administration submits a new, narrow request to the FISA court, now focused on a computer server in Trump Tower suspected of links to Russian banks. No evidence is found — but the wiretaps continue, ostensibly for national security reasons, Andrew McCarthy at National Review later notes. The Obama administration is now monitoring an opposing presidential campaign using the high-tech surveillance powers of the federal intelligence services.
By October 2016 things are looking really serious for Hillary, but not desperate yet. The Democrats are trying to find a way to neutralize the Podesta emails, which expose serious collusion with the Fake New media. They also remind everyone of Hillary’s own email issues.
But more importantly, the Clinton Foundation was being exposed as a pay-for-power enrichment scheme (rivaling anything thrown at Team Trump in the last few weeks). Did all these events panic the White House and the Democrat power structure? Did they attempt a Hail Mary and try and resurrect their plan to use our nation’s Intelligence Apparatus against Trump?
Not an unreasonable assumption to be honest. And somehow Team Obama actually get the authority for surveillance (maybe by withholding key information about Trump?). Anyway, no one is challenging the fact surveillance began.
But after losing the election to the GOP, team Obama does something stupendously stupid: they issue a memo that attempts to overturn very clear laws about dissemination so they can try and “leak” damning innuendo about Trump through their surrogates in the Fake New media:
6. January: Obama expands NSA sharing. As Michael Walsh later notes, and as the New York Times reports, the outgoing Obama administration “expanded the power of the National Security Agency to share globally intercepted personal communications with the government’s 16 other intelligence agencies before applying privacy protections.” The new powers, and reduced protections, could make it easier for intelligence on private citizens to be circulated improperly or leaked.
The new rules, which were issued in an unclassified document, entitled Procedures for the Availability or Dissemination of Raw Signals Intelligence Information by the National Security Agency (NSA), significantly relaxed longstanding limits on what the NSA may do with the information gathered by its most powerful surveillance operations.
- Jan 3rd 2017 – Loretta Lynch signs off on rule changes for phone taps.
- Jan 12th 2017 – WaPo reports On Phone Calls Anonymous Intel Sources
Obama’s administration had become so addicted to circumventing laws by executive orders, procedures, rules, etc they apparently went to that well one time too many.
There is no legal cover behind an illegal rule. This is not going to protect these people from legal jeopardy (may reduce their sentences somewhat). And the more players involved (Lynch, her successor Yates, etc) the more this runs into the RICO statutes.
Team Trump looks to have a great case here. Plus they have access to the government “smoking gun” documents spread throughout. I do not understand why Obama’s administration would dig their legal hole deeper in disseminating the classified information the law required them to delete and not leak. But they did.
So what does that indicate about team Obama? Either colossal stupidity, uncontrolled panic, or a combination of both. Maybe by they time they realized Trump would find the FISA court records their only avenues was to try and turn public opinion using their robots in the Fake News media.
All Trump has to do is let out the smoking gun documents one at a time. Let the left deny and parse words, then drop his counterveiling bombshells.
Rinse and repeat.
If this is as bad as some say, Trump will milk this all the way – as he should.