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Trump, A President in Search of a Warrantless Intrusion

March 7, 2017 – Just as Donald Trump is bristling over what he contends is a warrantless intrusion into the caverns of Trump Tower and he’s beloved privacy-here are the real issues.

First, the likelihood that there really is a wiretap is quite suspect–after reading the dossier by the former MI6 operative–as referred to in multiple media sources–this ‘wiretap’ saga might very well be a desperate attempt by President Trump to deflect media attention and public opinion away from the Russian hacking issue and onto President Obama. Or, the new commander and chief may have totally relied upon his relished Breitbart News for his breaking news info fix. But, on the other hand, if he has actual credible sources for the info–like the intelligence community–he can ask–and it appears he did so the day after he made his ‘announcement,’ but to which FBI Director, James Comey says there was no such wiretap.

For those who wonder how a warrant of epic proportions can be obtained–that is a warrant to spy upon a presidential candidate or a president ‘elect’–well there has to be probable cause-and it better be good.

For the record, there are two kids of wiretap warrants that can be had: one is called a Title III warrant, from an Article III Court – a federal court having “jurisdiction” to hear criminal issues, and which can grant wiretap warrants–including those related to activities of the executive branch, i.e.,  the presidency. And, the other federal court, is a FISA Court (secret court) designated to have exclusive jurisdiction to issue wiretap warrants for terrorism and foreign espionage. All warrants from either court are to be based upon probable cause. For more on the differences, click here.

First, what is really probable cause? It is reason to believe that a crime has been committed or when there is evidence of a crime requiring a search to locate the criminality. It is a reasonable basis to believe that a crime is or was being committed and is used to apply for a warrant, search or arrest, and the facts of which are outlined before a Judge.

To obtain what is called a Title III warrant it is essential:

  1. That an “application for a warrant” must be prepared by an identified law enforcement or investigative officer.
  2. The application must be in writing, signed by the United States Attorney, an Assistant United States Attorney, and made under oath.
  3. It must be presented to a Federal district court or court of appeals judge and be accompanied by the Department’s authorization memorandum signed by an appropriate Department official and a copy of the most recent Attorney General’s Order designating that official to authorize Title III applications.
  4. It must identify the type of communications to be intercepted. “Wire communications” include “aural transfers” (involving the human voice) that are transmitted, at least in part by wire, between the point of origin and the point of reception, i.e., telephone calls. 18 U.S.C. § 2510(1). This includes cellular phones, cordless phones, voice mail, and voice pagers, as well as traditional landline telephones. “Oral communications” are communications between people who are together under circumstances where the parties enjoy a reasonable expectation of privacy. 18 U.S.C. § 2510(2). 
  5. The application must also specify ‘with specificity’ the items to be searched and the least obtrusive means to do so.

Requirements for a Title III Search Warrant Application are many, see here. And, the full text of Title III warrant requirements can be found at https://www.justice.gov/usam/criminal-resource-manual-28-electronic-surveillance-title-iii-applications

What is a FISA Court?

It is a Court of original (exclusive) jurisdiction sitting in Washington DC that can hear cases and controversies brought under the Foreign Intelligence Surveillance Act. That means it is the only one of its kind, and is meant to be for national security reasons, as it hears the most sensitive cases and data at the highest levels of government.

When was the Court established?

This Foreign Intelligence Surveillance Court (FISC) was established by Congress in 1978.  The Court reviews applications made by the United States Government in which they review information for approval (using the standard of probable cause–although in some cases ‘minimization of cause can occur’ -see below) of warrants for electronic surveillance, as well as physical searches, to include other forms of ‘investigative actions’–including wiretaps regarding terrorism and foreign espionage that fall exclusively under the 1978 Foreign Intelligence Surveillance Act.

Not an Ordinary Court-

The Court meets in a secure courtroom that is shielded from public view and/or eavesdropping. Its inner workings are secret as well, yet the rules of operation are extensive.

Practices and Operation of the FISA Court-

The practices and operation of the Court is unique, but does borrow from other Title III courts in a number of areas.

An excerpt (page 2, notes 2-4) of the FISC document reads as follows:

The process of using proposed applications and final applications is altogether similar to the process employed by other federal courts in considering applications for wiretap
orders under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended (“Title III”), which is codified at 18 u.s.c. §§ 2510-2522. 
In discussing Court interactions with “the government “throughout this document, I am referring to interactions with attorneys in the Office of Intelligence of the National
Security Division of the United States Department of Justice.
Pursuant to 50 U.S.C. §§ 1805(d)(3) and 1824(d)(3), the Court is authorized to assess compliance with the statutorily-required minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.

There can be no doubt that Trump campaign aides have come under FBI and other intelligence scrutiny because of their repeated contacts with people alleged to be tied to Russian intelligence agencies–and of course the newly released MI6 dossier alleging Trump and his associates conducted nefarious activities with Russian agents.

The likes of this is reminiscent of Watergate and the Nixon scandal with one very important difference-this one does not involve domestic spying or domestic wrongdoing as did Watergate–this one has implications of international proportion, and foreign espionage at the highest levels–espionage that has the potential to influence elections and national policy-and can determine the path, the security, and the future of our nation if left unfettered.

And the answer is yes, they still need probable cause, except those procedures can be “minimized” which might be argued to “cut to the chase” where expediency and clandestine operations are “ongoing and threatening natural security.” Minimization could mean probable cause could be viewed as only “reasonable suspicion” but that is only speculative. Suffice it to say, with Mr. Trump’s stature, as president of the US–that information is readily available to him, should he choose to seek it out!