Kiss "The Wall" and The Constitution Goodbye!

Andrew C. McCarthy wrote this excellent article. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.

The idea that FISA could be used against political enemies always seemed far-fetched. Now it might not be. Remember the great debate over “the Wall” following the 9/11 attacks? “The Wall” was a set of internal guidelines that had been issued by the Clinton Justice Department in the mid 1990s. In a nutshell, the Wall made it legally difficult and practically impossible for agents in the FBI’s Foreign Counter-Intelligence Division (essentially, our domestic-security service, now known as the National Security Division) to share intelligence with the criminal-investigation side of the FBI’s house. Those of us who were critics of the Wall — and I was a strenuous one, beginning in my days as a terrorism prosecutor who personally experienced its suicidal applications — made several arguments against it. My favorite argument, which I have repeated countless times, centered on how preposterous were the underlying assumptions of the Wall. This was far easier for prosecutors than journalists, academics, and the public to grasp, because we dealt with the Justice Department’s different chains of command for criminal and national-security investigations. Alas, after 20 years, I may have to revise my thinking. The theory of the Clinton DOJ brass in imposing the Wall was the potential that a rogue criminal investigator, lacking sufficient evidence to obtain a traditional wiretap, would manufacture a national-security angle in order to get a wiretap under the 1978 Foreign Intelligence Surveillance Act (FISA). A traditional wiretap requires evidence amounting to probable cause of commission of a crime. A FISA wiretap requires no showing of a crime, just evidence amounting to probable cause that the target of the wiretap is an agent of a foreign power. (A foreign power can be another country or a foreign terrorist organization.) The reason the Wall theory was absurd was that a rogue agent would surely manufacture evidence of a crime before he’d manufacture a national-security angle. The process of getting a traditional wiretap is straightforward: FBI crim-div agents and a district assistant U.S. attorney (AUSA) write the supporting affidavit; it gets approved by the AUSA’s supervisors; then it is submitted to the Justice Department’s electronic-surveillance unit; after that unit’s approval, the attorney general’s designee signs off; then the AUSA and the FBI present the application to a district judge. FISA wiretaps, by contrast, go through a completely different, more difficult and remote chain of command. In it, the district AUSA and FBI crim-div agents who started the investigation get cut out of the process, which is taken over by Main Justice’s National Security Division and the FBI’s national-security agents. In other words, if we assume an agent is inclined to be a rogue, it would be far easier (and less likely of detection) to trump up evidence of a crime in order to satisfy the probable-cause standard for a traditional wiretap than to manufacture a national-security threat in order to get a FISA wiretap. No rational rogue would do it. But now, let’s consider the press reports — excerpted in David French’s Corner post — that claim that the Obama Justice Department and the FBI sought FISA warrants against Trump insiders, and potentially against Donald Trump himself, during the last months and weeks of the presidential campaign. It’s an interesting revelation, particularly in light of last fall’s media consternation over “banana republic” tactics against political adversaries, triggered by Trump’s vow to appoint a special prosecutor to investigate serious allegations of criminal misconduct against Hillary Clinton — consternation echoed by Senate Democrats during Tuesday’s confirmation hearing for attorney-general nominee Jeff Sessions. From the three reports, from the Guardian, Heat Street, and the New York Times, it appears the FBI had concerns about a private server in Trump Tower that was connected to one or two Russian banks. Heat Street describes these concerns as centering on “possible financial and banking offenses.” 

I italicize the word “offenses” because it denotes crimes. Ordinarily, when crimes are suspected, there is a criminal investigation, not a national-security investigation. According to the New York Times (based on FBI sources), the FBI initially determined that the Trump Tower server did not have “any nefarious purpose.” But then, Heat Street says, “the FBI’s counter-intelligence arm, sources say, re-drew an earlier FISA court request around possible financial and banking offenses related to the server.” Again, agents do not ordinarily draw FISA requests around possible crimes. Possible crimes prompt applications for regular criminal wiretaps because the objective is to prosecute any such crimes in court. (It is rare and controversial to use FISA wiretaps in criminal prosecutions.) FISA applications, to the contrary, are drawn around people suspected of being operatives of a (usually hostile) foreign power. The Heat Street report continues: The first [FISA] request, which, sources say, named Trump, was denied back in June, but the second was drawn more narrowly and was granted in October after evidence was presented of a server, possibly related to the Trump campaign, and its alleged links to two banks; [sic] SVB Bank and Russia’s Alfa Bank. While the Times story speaks of metadata, sources suggest that a FISA warrant was granted to look at the full content of emails and other related documents that may concern US persons. (A “US person” is a citizen or lawful permanent resident alien. Such people normally may not be subjected to searches or electronic eavesdropping absent probable cause of a crime; an exception is FISA, which — to repeat — allows such investigative tactics if there is probable cause that they are agents of a foreign power.) Agents do not ordinarily draw FISA requests around possible crimes. Possible crimes prompt applications for regular criminal wiretaps, because the objective is to prosecute any such crimes in court. Obviously, we haven’t seen the FBI affidavits (assuming they actually exist), and we do not know lots of other relevant facts. What we have, however, suggests that someone at the FBI initially had concerns that banking laws were being violated, but when the Bureau looked into it, investigators found no crimes were being committed. Rather than drop the matter for lack of evidence of criminal offenses, the Justice Department and FBI pursued it as a national-security investigation. In June, an initial FISA affidavit (obviously prepared by the FBI and the Justice Department’s National Security Division) was submitted to the FISA court. It is said to have “named Trump” — but we don’t know whether that means (a) his name merely came up somewhere in the text of the affidavit or (b) he was an actual target whom the government wanted to investigate under FISA (meaning eavesdrop, read e-mail, and the like). Even though the FISA standard is generally thought to be less demanding than the traditional wiretap standard (it is easier to show that someone may be colluding in some way with a foreign government than that he has committed a crime), the FISA court rejected the application that “named Trump.” Five months later, the Justice Department and FBI submitted a second, more “narrowly” drawn affidavit to the FISA court. The way the Heat Street report is written intimates that Trump is not named in this October application for FISA surveillance. The tie to Trump also appears weak: Heat Street says the FISA court was presented with evidence of a server “possibly related” to the Trump campaign and its “alleged links” to two Russian banks. To summarize, it appears there were no grounds for a criminal investigation of banking violations against Trump. Presumably based on the fact that the bank or banks at issue were Russian, the Justice Department and the FBI decided to continue investigating on national-security grounds. A FISA application in which Trump was “named” was rejected by the FISA court as overbroad, notwithstanding that the FISA court usually looks kindly on government surveillance requests. A second, more narrow application, apparently not naming Trump, may have been granted five months later; the best the media can say about it, however, is that the server on which the application centers is “possibly” related to the Trump campaign’s “alleged” links to two Russian banks — under circumstances in which the FBI has previously found no “nefarious purpose” in some (undescribed) connection between Trump Tower and at least one Russian bank (whose connection to Putin’s regime is not described).

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That is tissue-thin indeed. It’s a good example of why investigations properly proceed in secret and are not publicly announced unless and until the government is ready to put its money where its mouth is by charging someone. It’s a good example of why FISA surveillance is done in secret and its results are virtually never publicized — the problem is not just the possibility of tipping off the hostile foreign power; there is also the potential of tainting U.S. persons who may have done nothing wrong. While it’s too early to say for sure, it may also be an example of what I thought would never actually happen: the government pretextually using its national-security authority to continue a criminal investigation after determining it lacked evidence of crimes.