If madness is doing the same thing over and over and expecting a different result, then it’s fair to say that in respect to it’s reporting on Donald Trump the legacy media is a ripe candidate for sectioning. He’s dispatched Jeb, Marco, Ted, more than a dozen other Republican presidential candidates and Hillary. He’s been written off by the press at every stage of his candidacy. Every time he looks as if he’s about to implode he powers through and emerges stronger. So, after the President’s twitter attack on his predecessor, Barack Obama this past weekend, the press went with the playbook which has failed them the last 659 times they’ve tried it. Bizarre! No evidence! Unfounded! Bonkers, Paranoid and Trapped!
In the meantime, the the commentary from legal analysts suggests that the President’s playing with a much stronger hand than the lying press would lead you to believe. Various legal and academic commentators all agree that if the Obama administration did run a surveillance operation against Trump over the course of the election, there’s a strong possibility that laws may have been broken in the process. From Law Newz:
What crimes could have been committed? Ironically, for Democrats falsely accusing Attorney General Sessions, perjury and conspiracy to commit perjury, as well as intentional violations of FISA. 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.
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 circumstance.
It’s also been noted, by Andrew C. McCarthy amongst others that the denials being issued by various figures connected with the Obama administration are disingenuous and suggestive of the fact that a surveillance operation against the Republican Presidential candidate did, in fact, take place.
Trump’s tweets on Saturday prompted some interesting “denials” from the Obama camp. These can be summarized in the statement put out by Obama spokesman Kevin Lewis:
A cardinal rule of the Obama Administration was that no White House official ever interfered with any independent investigation led by the Department of Justice. As part of that practice, neither President Obama nor any White House official ever ordered surveillance on any U.S. citizen. Any suggestion otherwise is simply false.
This seems disingenuous on several levels.
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. So, the issue is not whether Obama or some member of his White House staff “ordered” surveillance of Trump and his associates. The issues are (a) whether the Obama Justice Department sought such surveillance authorization from the FISA court, and (b) whether, if the Justice Department did that, the White House was aware of or complicit in the decision to do so. Personally, given the explosive and controversial nature of the surveillance request we are talking about – an application to wiretap the presidential candidate of the opposition party, and some of his associates, during the heat of the presidential campaign, based on the allegation that the candidate and his associates were acting as Russian agents – it seems to me that there is less than zero chance that could have happened without consultation between the Justice Department and the White House.
Second, the business about never ordering surveillance against American citizens is nonsense. Obama had American citizens killed in drone operations. Obviously, that was not done in the U.S. or through the FISA process; it was done overseas, under the president’s commander-in-chief and statutory authority during wartime. But the notion that Obama would never have an American subject to surveillance is absurd.
Third, that brings us to a related point: FISA national-security investigations are not like criminal investigations. They are more like covert intelligence operations – which presidents personally sign off on. The intention is not to build a criminal case; it is to gather information about what foreign powers are up, particularly on U.S. soil. One of the points in FISA proceedings’ being classified is that they remain secret – the idea is not to prejudice an American citizen with publication of the fact that he has been subjected to surveillance even though he is not alleged to have engaged in criminal wrongdoing.
The press has been reporting the existence of the FISA-approved wiretapping operation for months. Now they’re scrambling to dismiss and failing utterly as the following examples show:
Reuters admits that the denial put out by Obama’s camp doesn’t preclude the possibility that surveillance took place.
Obama spokesman Kevin Lewis said it had been a “cardinal rule” of the Obama administration that no White House official ever interfered with any independent investigation led by the Department of Justice.
“Neither President Obama nor any White House official ever ordered surveillance on any U.S. citizen. Any suggestion otherwise is simply false,” Lewis said in a statement.
The statement did not address the possibility that a wiretap of the Trump campaign could have been ordered by Justice Department officials.
Clapper also denied that the Foreign Intelligence Surveillance Court had authorized any wiretap. “I can deny it,” he said. But he said he couldn’t speak for “other authorized entities in the government or a state or local entity.”
Furthermore Clapper reinforced his denial of a wiretap by claiming there is no evidence linking Trump’s campaign to the Russian government thereby refuting the entire elite narrative of the past few months:
TODD: There is no FISA court order.
CLAPPER: Not to my knowledge.
TODD: Of anything at Trump Tower.
TODD: Well, that’s an important revelation at this point.
Let me ask you this, does intelligence exist that can definitively answer the following question, whether there were improper contacts between the Trump campaign and Russia officials?
CLAPPER: We did not include evidence in our report, and I say our, that’s NSA, FBI and CIA with my office, the director of national intelligence that had anything — that had any reflection of collusion between members of the Trump campaign and the Russians. There was there no evidence of that including in our report.
TODD: I understand that, but does it exist?
CLAPPER: Not to my knowledge.
TODD: If it existed, it would have been in the report?
CLAPPER: This could have unfolded or become available in the time since I left the government. But at the time, we had no evidence of such collusion.
TODD: There’s a lot of smoke, but there hasn’t been that smoking gun yet. At what point should the public start to wonder this is all just smoke?
CLAPPER: Well, that’s a good question. I don’t know.
Today’s stories breathlessly informing us that James Comey the director of the FBI demanded the Justice Department reject the president’s claim are similarly weak tea for two reasons. Firstly Comey isn’t directly quoted – the story is related by anonymous “officials”. And secondly, if the FBI didn’t engage in any wiretapping of Trump or his associates then there is no reason why it couldn’t issue a denial itself – as far as I know it’s not against the law to deny that your agency did something that would bring it into disrepute.
But don’t worry everybody, it’s Trump that’s making the unsubstantiated claims. It’s Trump who’s unhinged. Be good boys and girls and trust the professionals in the media. They’ve been right all along don’t you know.