Tag: FISA

And About Those Norms…

We hear a lot about norms these days, and in particular, about how President Donald Trump’s typically juvenile behavior violates long standing norms and therefore harms democracy. There is something to this. Trump is, after all, boorish, a habitual liar and an all around disgrace. And that’s on a good day. For instance, Trump has recently taken to insinuating that Joe Scarborough may have been involved in the death of one of his staffers when he was a Congressman. The actual cause of death was an undiagnosed heart ailment; the woman died in Florida while Scarborough was in Washington.

That aside, no reasonable person should doubt that norms, manners and temperament are crucial elements for the institutions of civil society, the rule of law and  for freedom generally.  And here, Donald Trump’s behavior is destructive, and becoming more so.

So we are left to ponder a question: Why is it that there is so little interest from the defenders of norms in what is emerging as perhaps one of, if not the biggest political scandals in the history of the Republic? A scandal in which important norms were eviscerated and may well have involved Nixon style (or worse) criminal behavior by high level federal officials.

It is becoming increasingly clear that the Obama Administration used federal law enforcement agencies to surreptitiously surveil members of the Trump campaign and the incoming administration. Obama officials submitted deliberately falsified documents to the FISA Court in a successful effort to obtain warrants to surveil Trump campaign and administration officials. Obama officials went on television to claim they had evidence of Trump’s collusion with Russia even though under oath and in secret they admitted that they had no such evidence. 

In the matter of the Russia Collusion allegation, and then the Michael Flynn matter, it turns out that much, if not the entirety of the subsequent investigation was simply based on a pretext largely invented by Christopher Steele who was bought and paid for by Hillary Clinton’s campaign using the law firm Perkins Coie as a cutout. In the process not only did numerous Obama Administration political officials make requests to have Michael Flynn’s identity unmasked, his identity was quickly (and illegally) leaked to the press, most famously to David Ignatious of the Washington Post.  

The honor roll of Obama Administration officials who were suddenly interested in having Flynn’s name unmasked included: Susan Rice, Samantha Powers, James Comey, James Clapper, James Brennan, Treasury Secretary James Lew, then Chief-of-Staff Denis McDough and of course Joe Biden. For his part, Biden claimed he “knew nothing about these moves to investigate Flynn.” And then, ahem, his name showed up requesting that Flynn be unmasked on January 12, 2017. 

Not only did former Director of National Security (and admitted liar) James Clapper submit an unmasking request in the Flynn matter, so did two of his deputies, Micheal Dempsey and Stephanie L. Sullivan.  According to both Sally Yates and James Comey, James Clapper personally briefed President Obama on the Flynn-Kislyak calls as part of the Presidential Daily Briefing (PDB). But well before the unmasking requests were released to the public, Clapper testified behind closed doors under oath in the matter. He was asked (under oath) by Congressman Tom Rooney of Florida: “Did you ever brief President Obama on the Flynn-Kislyak phone calls?” Clapper had a one word answer: “No.” We know that was untrue.

The records also show that Samantha Powers made 260 unmasking requests during her tenure as U.N. Ambassador. She has testified that while most of these requests were made in her name, she herself did not make the them. According this version of events, someone else used her name in a national security matter, but she has no idea who it was. 

In all there were 39 Obama Administration officials who made 53 separate requests to unmask Flynn between election day (November 8, 2016) and inauguration day (January 17, 2017). Most of the requests took place between December 14 and 16, 2016, which was 2 weeks before Flynn’s December 29, 2016 call with  Russian Ambassador Kislyak, the predicate offered as justification for the Flynn investigation. 

In this sordid tale we should not omit the handiwork of John Brennan, Director of the CIA. Brennan claimed that “he [Trump] is wholly in the pocket of Putin”. On Meet the Press he told Chuck Todd “I called [Trump’s] behavior treasonous, which is to betray one’s trust and aid and abet the enemy, and I stand very much by that claim.” 

He is not standing by it now, at least from his perch at MSNBC. After special counsel Mueller “did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government” Brennan backtracked. He said “I don’t know if I received bad information, but I think I suspected there was more than there actually was”. 

I could go on with example after example, but the point is clear. Political operatives, law enforcement and intelligence officers in the Obama Administration conducted surreptitious surveillance on opposing Party’s presidential campaign and candidate. On national TV, they went so far as to fan flames about a non-existent Trump-Russia conspiracy, using “evidence” that they knew to be phony and manufactured by the Clinton campaign. We know this because Obama Administration officials have admitted to as much.

Evelyn Farkas, an Obama Administration Defense Department appointee, claimed on MSNBC that she was afraid that Trump administration officials might destroy evidence of the alleged collusion “if they found out how we knew what we knew about Trump’s staff dealing with Russians”. 

But when questioned under oath behind closed doors by Rep. Gowdy of South Carolina, Farkas sang a different tune. 

So, would someone please remind me again on how these norms are supposed to work. 

Progressive Failure

The current imbroglio over the impeachment of Donald J Trump, and the various investigations associated with it combine to present a text book example of why progressivism, better described as managerial socialism, is doomed to failure. Like all forms of socialism. It is doomed to failure because, seen through the progressive lens, the world is simply a series of challenges to be met on the road to perfection. Human nature, in the progressive mind, is infinitely elastic and challenges along the road can be met by scientifically discovering and implementing the right policies designed to achieve the correct outcome, which is ultimately the  perfection of man and society.

Speaker Pelosi

Progressivism has no understanding of, or framework for coping with the tragedy of the human condition. The tragedy of Romeo and Juliet (properly deconstructed of course) is simply a story of a problematic lack of communication between the Capulets and the Montagues. Nothing that a Blue Ribbon Panel and a little diversity training couldn’t solve. And so in the end, progressivism becomes a soulless and soul crushing bureaucracy. Managed by experts, of course. 

This is where the problem lies. The belief that we can “solve” problems emanating from the imperfections of human nature if only we adopt the right policies and procedures necessarily leads to coercive bureaucratic behavior. It won’t “solve” the problem because it can’t, but it will inevitably lead to more and more bureaucratic coercion as managers adopt tighter and tighter restrictions on individual freedom in order to achieve their desired ends.

Which brings us to the impeachment of Donald J. Trump.

It is often said that people argue process when they are losing the substance of a debate. That is probably true. And there should be little doubt that Trump & his sycophants are arguing a lot of about process these days. But consider this: we do not seek either justice or freedom in the abstract; we seek to achieve both in a real world that is imperfect. That requires a delicate balancing act. As part of that balancing, we require the state to meet several procedural tests before it may properly resort to coercion. And the severity of those tests ascends with the consequences of state action. 

Because the legal system takes into account the foibles of human nature, checks and balances are built into it. For instance, a person charged with a crime has the right to an attorney and the right to confront his accusers. The state may not apply new law ex post. Persons may not be made subject to double jeopardy. A person may not be compelled to testify against himself, and a refusal to testify may not be considered as evidence of guilt. The state must prove guilt, the defendant is not required to prove innocence. The state must get a search warrant from a court before conducting a search.

Norms, policies and procedures developed over time to protect the rights of the accused were obliterated in the Trump investigations, particularly by the FBI in its pursuit of evidence against Trump in the Russia collusion case. It was from this soil that his impeachment came for charges of abuse of power and obstruction of Congress. 

Which brings us to the FISA Court. 

The FISA Court is unlike any other in the United States. By law it operates in secret and when the FBI seeks a warrant from the Court, there is no defense attorney to contest it.  That, and the misstatements contained in the Carter Page FISA warrants, is why Judge Rosemary M. Collyer observed that the FBI has a higher requirement of candor when submitting a request to the FISA court. In the case of Carter Page, that is a requirement the FBI spectacularly failed to meet. As a result, on December 17, 2019 Judge Collyer issued a blistering order telling the FBI to report to her by January 10, 2020 on what it has already done and what it will continue to do in the future to reform itself. The order can be found at this link. 

Which brings us to why progressivism, best described as managerial socialism, is bound to fail. For its implementation it necessarily relies on independent agencies managed by Platonic philosopher Kings divorced from the hurly burly of politics and political accountability. The predictable result is policy failure and more centralization of power in an increasingly coercive central bureaucracy whose raison d’être eventually degenerates into the accumulation of political power for its own sake. All in the name of managerial efficiency in the pursuit of an unattainable end; namely the perfection of man and society.  

None of which is to imply that Trump is innocent of abusing the power of his office. Of course he did. So did Barrack Obama and George W Bush, unless of course you think it’s just fine for the President of the U.S. to have on his desk a kill list of U.S. citizens to be summarily executed by drone strike. Or perhaps turn the IRS loose on political opponents as in the Lois Lerner affair.

But let’s go to President Clinton for an example of behavior that is more directly comparable to the behavior for which President Trump has been impeached, but Clinton was not. (He was impeached and acquitted for a whole other set of alleged misdeeds). This instance concerns a memo leaked to the Washington Times, as reported by the Washington Post. The relevant paragraph is quoted below. 

“The memo, as quoted in the [Washington] Times, said Clinton pledged to work with Yeltsin to maintain “positive” relations with the United States as both men seek reelection this year. One way to do this, the memo quoted Clinton as saying, is for Yeltsin to stop restricting poultry imports. Clinton said “this is a big issue, especially since 40 percent of U.S. poultry is produced in Arkansas,” the memo said.” See the Washington Post link here. 

So with respect to Nancy Pelosi and Company “having no choice” but to impeach Trump, spare me the sanctimony. Sure, his judgment and behavior  have been, and probably will continue to be appalling. So what else is new? But let’s not pretend that this is anything other than a progressive power play designed to court the base and short circuit voter preferences before the elections on November 3, 2020. 

Democracy doesn’t die in darkness. It dies on the front page in plain sight of all those willing to look. 

Mistakes Were Made

The systematic mishandling of the FBI’s investigation into the charge that candidate Trump colluded with Russia in order to win the 2016 presidential election suggests more than administrative sloppiness combined with routine government incompetence. One need not be a Trump admirer—and there are few people who have a lower opinion of the man than I do—to recognize that the behavior of the FBI was egregiously out of bounds and that the mainstream press shielded the FBI from critics. 

Consider the findings of Inspector General Michael Horowitz. In an exhaustive review of the FBI’s handling of the Trump collusion investigation Horowitz detailed appalling errors of judgment and violations of FBI rules—by the FBI. These were not small scale or trivial errors. And that assumes they were merely errors. In this respect it should be noted that Horowitz found evidence a relatively low-level FBI lawyer actually tampered with documents related to the probe. 

The report on the Crossfire Hurricane investigation includes examples of what Horowitz describes as threats to constitutionally protected activity, including First Amendment activity.  To be sure, Horowitz did not find the proverbial smoking gun proving  the existence of a deep state conspiracy that Trump and Company are busy whipping up. But neither did it “debunk” anything of substance. 

The party line among Democrats and their cheerleaders in the press has been that the IG found no political bias so that we might as well get on with the business of impeachment. 

Not so fast. 

What the IG actually said was “We did not find documentary or testimonial evidence that improper considerations, including political bias, directly affected the specific investigative actions we reviewed.” He went on to say that “While we did not find these decisions were the result of bias on Comey’s part, we nevertheless concluded that by departing so clearly and dramatically from FBI and department norms, the decisions negatively impacted the perception of the FBI and the department as fair administrators of justice”.  The IG said that while he could find no documentary evidence that the mistakes were the result of political bias rather than gross incompetence, he was not satisfied with the explanations he was given. Finally, referring to his report he said “ It doesn’t vindicate anybody at the FBI who touched this, including the leadership”. 

So how plausible is it that there was no political bias, when according to the evidence:

  1. The FBI systematically committed egregious violations of its norms and policies; 
  2. An FBI lawyer altered relevant documents;
  3. Two FBI agents (Peter Strzok and Lisa Page) involved in the inquiry were texting each other about “stopping” Trump and creating an anti-Trump  “insurance policy” ;
  4. That Andrew McCabe was fired for lying about his role; 
  5. That McCable’s sworn testimony directly contradicts James Comey’s sworn testimony;
  6. That Bruce Ohr’s wife was being paid by Fusion GPS, a fact that Ohr conveniently neglected to include on his financial disclosure forms

The obvious questions are: Was this FBI behavior unusual? Does the FBI routinely botch investigations this way? Or was this a special case, and if so, what is the explanation for it?

If you parse the IG’s statement what he effectively said was (1) there is a low threshold for starting an investigation, which the FBI met and (2) nobody wrote a memo to the file outlining bias, so (3) let’s go with gross incompetence even though the explanations received are unsatisfactory.

The idea that the top echelons of the FBI were not politically motivated is a tough sell, especially when you consider the Lois Lerner episode. That fiasco is starting to look like a dress rehearsal for the Russia collusion story. In the Tea Party episode the IRS targeted conservative Tea Party organizations to stop them from fundraising for the upcoming 2012 Presidential elections. Needless to say, the bureaucracy dug in its heels and claimed that no such thing happened before finally admitting it. Attorney General Eric Holder put the FBI—yes that FBI—in charge of investigating the incident. Not surprisingly, nothing serious came of it. But lots of relevant IRS email files mysteriously went missing. And Lois Lerner, who was formerly a Democratic Party operative before going to the IRS, took the 5th before Congress, collected a bonus and retired. 

The FBI Collusion investigation would not be the first time, and it certainly won’t be the last when an Administration turns to Executive Agencies to punish political enemies. Richard Nixon did it, so did Lyndon Johnson, and J. Edgar Hoover wasn’t exactly a Boy Scout either. It increasingly looks like the Obama Administration was not a lot different, just better at it.

Political bias is not the main or only issue. It is possible, however unlikely, that gross incompetence is the sole explanation, in which case we have a huge structural and institutional problem.  A more likely explanation is that this whole sorry tale is really about the corruption of power and the threat an ever growing federal bureaucracy poses to the civil liberties of American citizens regardless of political viewpoint. The power of corruption is an equal opportunity employer.

JFB