Policing in totalitarian countries like Nazi Germany, the Soviet Union, North Korea, Cuba, and others past and present, doesn’t take a lot of imagination. When the “interests of the state” supersede any protections the constitution (if there is one) or laws provide its citizens, then both become meaningless. When people can be rounded up en masse, can be held indefinitely, interrogated by any and all means, and afforded no due process to include a lawyer and impartial judge, it’s a lot easier to get results.
In police states there is no need to build a factual case against someone to develop probable cause for an arrest, search warrant, or to conduct electronic surveillance. If investigators decide to target someone based on a hunch or mere suspicion, there isn’t much, if anything, to stand in their way in the use of investigative techniques to gather evidence---or fabricate evidence.
Our Constitution and laws provide vast protections against illegal searches, seizures, arrests, detentions, and much more that involve the state. No argument from me that the quality of our justice system, which has improved greatly over the past 230 years, has room for improvement in maintaining a balance between the rights of all Americans and the needs of police to solve and ferret out crime.
Electronic searches and seizures governing domestic crimes are governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The Foreign Intelligence Surveillance Act (FISA), passed in 1978, prescribes procedures for electronic surveillance in espionage and terrorism cases where a foreign power is acting against the United States. In both instances, the process for obtaining a court order to conduct surveillance is labyrinthine, and it is a felony to commit intentional violations of either act.
Last week summaries of the report from Department of Justice (DOJ) Inspector General Michael Horowitz were released concerning whether the FBI conducted illegal electronic surveillance against Donald Trump and his presidential campaign in 2016. It also investigated whether the FBI planted undercover agents and/or informants against Trump and/or his top campaign officials. The IG found no evidence of wrongdoing in either circumstance.
Horowitz’ full report will be released on December 9th, which will include misconduct by a low level FBI lawyer involved in obtaining the FISA warrant against former Trump campaign official Carter Page. The lawyer in question backdated a document used in the application for the warrant, but the document was not a key part of the facts set forth in the application. In other words, removing the tainted document, there was sufficient probable cause for a FISA judge to issue the warrant. The IG has referred the lawyer’s misconduct to federal prosecutors for potential criminal charges.
The rough draft report also found no evidence of political motivation by the FBI in pursuing the FISA warrant against Page. It is also noted that the warrant was obtained after Page had left the Trump campaign. Allegations by Trump that former president Barack Obama had ordered Trump’s phones to be tapped, were debunked. The odds of any president getting the FBI to conduct an electronic surveillance without a lawfully issued court order is close to zero. Too many people would have to be involved for it to happen, which only conspiracy buffs could believe.
It is important for readers to know that obtaining any kind of warrant for electronic surveillance is very different from getting an ordinary search or arrest warrant. Also, the DOJ has very strict guidelines concerning the FBI opening an investigation of any public official, and the guidelines are very strict the higher up the ladder you go. It is almost impossible for a cabal of FBI agents to decide they are going to conduct a secret investigation of the president or any other government official without being caught. There are too many moving parts for this to happen, and it would take too many people to be part of such criminal act to keep it from being disclosed. I have never met the first FBI agent willing to risk his career and going to prison in an attempt to willfully violate Title III or the FISA.
Attorney General William Barr appointed John Durham, U.S. Attorney for the District of Connecticut, to also investigate the origins of the Russia investigation to determine if there was FBI misconduct. Durham has convened a grand jury, which means subpoena power for witness testimony and documents. Whether his findings will alter those of the IG remains to be seen.
I think it’s fair to say that the IG report will acquit the FBI of any serious wrongdoing. Other findings that are critical of the FBI will hopefully be used to enhance investigative procedures and safeguards in the future. Because we have a Constitution and live in a country that abides by the rule of law, there are at times investigations to determine if our own government officials have engaged in wrongdoing. That separates us from totalitarian countries. We should all be grateful for that and know the difference when making comparisons.