If the stories are correct, Obama or his officials might even face prosecution. But, we are still early in all of this and there are a lot of rumors flying around so the key is if the reports are accurate. We just don’t know at this time. The stories currently are three-fold: first, that Obama’s team tried to get a warrant from a regular, Article III federal court on Trump, and was told no by someone along the way (maybe the FBI), as the evidence was that weak or non-existent; second, Obama’s team then tried to circumvent the federal judiciary’s independent role by trying to mislabel the issue one of “foreign agents,” and tried to obtain a warrant from the Foreign Intelligence Surveillance Act “courts”, and were again turned down, when the court saw Trump named (an extremely rare act of FISA court refusal of the government, suggesting the evidence was truly non-existent against Trump); and so, third, Obama circumvented both the regular command of the FBI and the regularly appointed federal courts, by placing the entire case as a FISA case (and apparently under Sally Yates at DOJ) as a “foreign” case, and then omitted Trump’s name from a surveillance warrant submitted to the FISA court, which the FISA court unwittingly granted, which Obama then misused to spy on Trump and many connected to Trump. Are these allegations true? We don’t know yet, but if any part of them are than Obama and/or his officials could face serious trouble.
Is this true? Any of it? We’ll find out soon. FISA applications are almost always granted, with complete deference to the Executive branch (12 denials in over 35,000 applications). That the FBI or someone backed off a regular warrant suggests a lack of evidence. That FISA would reject a subsequent application is amazing. The issuance of a follow-up application suggests impropriety (as does this entire episode).
As I mentioned yesterday, a sitting President is one of the few who can obtain FISA records with any ease. And he’s working on it: “”A senior White House official said that Donald F. McGahn II, the president’s chief counsel, was working on Saturday to secure access to what the official described as a document issued by the Foreign Intelligence Surveillance Court authorizing surveillance of Mr. Trump and his associates.”
If any of this is substantiated, then the “why” behind it, the motives, will be explored – likely as part of the criminal prosecution. Was it an attempt to sway the election? A fishing expedition on Trump? War with Russia related? Who knows?
Here’s an interesting thought, one grounded in existing precedent: what if the alleged actions touch substantially on national security matters (the Russian war angle or terrorism or something related)? Would an attempt to steer the U.S. into harm’s way constitute action giving aid to an enemy? If so determined, then the responsible party(ies) could possible be labeled as “enemy combatants”, accordingly detained, and treated as such.
We may have entered uncharted territory. Developing…