A mere days before then-president-elect Donald Trump’s inauguration, former President Barack Obama expanded the ability of intelligence agencies to share unfiltered telephone surveillance information.
The Obama administration issued Executive Order 12333, which allows the National Security Agency (NSA) to share raw intercepted communications with agencies that include the FBI, DEA, and Department of Homeland Security, among others.
Numerous press reports at the time indicated that the Obama Justice Department and the FBI sought Foreign Intelligence Surveillance Act (FISA) warrants against Trump campaign insiders and then-presidential candidate Trump himself during the final months of the presidential campaign.
The UK Guardian reported that the FBI applied for a warrant from the FISA court during the summer of 2016 to digitally eavesdrop on four members of the Trump campaign regarding possible contacts with Russian officials. The FISA court denied the application as being overbroad.
Heat Street published a story that, following an investigation of a Trump Tower server and determining that the server did not have “any nefarious purpose,” the FBI’s counter-intelligence division re-drew an earlier FISA court request concerning the same server, which had been dealing with “possible financial and banking offenses related to the server.”
It is highly unusual for FBI agents to apply to the FISA court for suspected criminal behavior, since the goal of the surveillance is to use the produced evidence in court for a criminal prosecution.
According to Heat Street, the first FISA application specifically named Trump but was denied in June 2016; however, the second more narrowly drawn application was granted in October 2016.
It therefore appears that, after a criminal matter was turned down by the FISA court, the Obama Justice Department via the FBI took a second bite at the FISA apple by pursuing the application as a national security matter, reportedly with Trump’s name removed.
Evidently, former National Security Advisor Gen. Michael Flynn was intensely disliked by Obama holdovers at the CIA for having opposed the Obama administration’s Middle East policies, particularly the Iran nuclear deal.
It is now known from numerous reports that Obama intelligence agencies recorded Gen. Flynn’s telephone conversation with the Russian ambassador. The contents of the call were then leaked to David Ignatius of the Washington Post, the reporter of choice for left-leaning staffers at the CIA.
The New York Times recently reported that “Obama advisers” heard from the FBI about the recorded telephone conversations between Gen. Flynn and the Russian ambassador, and that the “advisers grew suspicious that perhaps there had been a secret deal between the incoming team and Moscow, which could violate the rarely enforced, two-century-old Logan Act barring private citizens from negotiating with foreign powers in disputes with the United States.”
The use of the Logan Act by Obama advisers as justification for an investigation of Gen. Flynn is clearly a legal façade, and the reporting on the act has been largely deceptive. Since being passed into law in 1799, the Logan Act has yielded zero convictions because competent lawyers and judges correctly regard the law as an unconstitutional artifact.
It is therefore not surprising that National Public Radio’s Mary Louise Kelly reported that there is no evidence of criminal wrongdoing in the transcripts of the recordings of Gen. Flynn’s conversations with the Russian ambassador, and that there is nothing on the transcripts to indicate that Gen. Flynn was acting under anyone’s orders in his conversations.
As reported by CNN, the FBI is not expected to pursue charges against Gen. Flynn because FBI interviewers do not believe he intentionally misled them during his interview.
During a recent appearance on the Fox News Channel, Bryan Dean Wright, a former CIA officer and a Democrat, spoke frankly about a fifth column of intelligence staffers who are leaking as well as withholding intelligence materials from the Trump administration.
Wright said that a “handful” of CIA officers are “doing something very wrong, leaking information or not giving information to the president.”
The former CIA operative described “leftovers from the last administration…” and those who were upset “that they didn’t get the job in the [Hillary] Clinton administration…”
Wright made it a point to bring up a Twitter post by security consultant and ex-NSA employee John Schindler. Schindler wrote the following on his Twitter account: “Now we go nuclear. IC [intelligence community] war going to new levels. Just got an EM [email] fm senior IC friend, it began: ‘He will die in jail.’”
Some or all of these same “leftovers” are likely to have been involved in the Gen. Flynn leaks. When FISA surveillance is intentionally leaked to a news organization, it is deadly serious in its implications.
Damon Linker, senior correspondent at TheWeek.com., called the leaks “an effort to manipulate public opinion for the sake of achieving a desired political outcome.”
“It’s weaponized spin,” Linker wrote.
More importantly, it is a federal criminal matter under the Espionage Act 18 U.S.C. § 798(a).
Now that President Trump has directed the Justice Department to open a criminal investigation to determine who was responsible for the leaks, Attorney General Jeff Sessions is in a position to impanel a grand jury that will take testimony and issue subpoenas.
The pursuit of the truth is likely to follow a serpentine path that leads to an unsettlingly familiar door.