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FISA and the Trump Team

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By Andrew C. McCarthy

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…

Read full article at National Review

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