Category Archives: US Constitution

Legal Irrational Exuberance? Turley on Devin Nunes, Lawrence Tribe and the law | Feb 15 2018

When Mania Goes Mainstream: Experts Claim Nunes Could Be Indicted Next

|| Jonathan Turley

“Below is my column in the Hill Newspaper on the recent column in the New York Times by Harvard Law Professor Lawrence Tribe and others that Devin Nunes could be charged with obstruction of justice. The column contains highly dubious uses of both history and precedent to advance this latest claim of criminality.  The ABA Journal and other papers have reported on the theory without any objective of its meritless foundation in constitutional law.  The basis for such claim is so attenuated as to border on the fanciful.   There are serious possible crimes being alleged without twisting the criminal code to go after supporters of President Trump.

For a year, some of us have questioned calls for the prosecution of President Trump for obstruction of justice. Every ill-conceived statement or tweet by Trump is proclaimed as “smoking gun” evidence of this seemingly catch-all crime. As the “resistance” to Trump grew, so did the expansion of the interpretation of the crime. It became increasingly more difficult to determine not what is obstruction but what is not obstruction. A recent column in the New York Times seems to have the answer: Prosecute them all and let God sort them out.

The column by Harvard Law School professor Lawrence Tribe, (right), American Constitution Society president Caroline Fredrickson and Brookings Institution fellow Norman Eisen argued that House Intelligence Committee Chairman Devin Nunes (R-Calif.) could now join Trump in the criminal dock. His crime? Writing a memo alleging FBI abuses that was released by a vote of the majority of a committee overseeing the FBI.

The column entitled “Is Devin Nunes Obstructing Justice?” captures the distemper that has overtaken legal analysis. It appears that anyone deemed as supporting Trump can now be charged with the same nebulous crime. After all, if Trump is actively trying to obstruct a federal investigation, surely those who actively support him or oppose the investigation are no less guilty of the same offense.It is not that easy for federal courts, which traditionally follow the opposite inclination under the “rule of lenity.” Courts tend to not only define criminal laws narrowly but rule in favor of defendants in areas of ambiguity. These and other experts appear to view ambiguity as an invitation for creativity in finding ways to indict Trump. There is a real danger to civil liberties by the continuing effort to endlessly expand criminal definitions. Trump will not be our last president and these new overarching definitions will remain with us as a type of unpaid bill. It will be citizens who pay that legal bill.

The latest obstruction claim asserts that “by writing and releasing the memo, the chairman may just have landed himself, and his staff members, in the middle of Robert Mueller’s obstruction of justice investigation.” Of course, there is the obvious complication of the immunity afforded to members of Congress under the Speech and Debate Clause of Article I.

In Gravel v. United States, the Supreme Court reaffirmed this immunity for not just members but staff after Sen. Mike Gravel (D-Alaska) read portions of the Pentagon Papers before a congressional committee. Ironically, Gravel was supporting the New York Times, which first published the papers in defiance of the Nixon administration.

While acknowledging the “strong bulwark” of immunity, the authors work mightily to limit the possible use of immunity, including some creative use of history. For example, they note that the Supreme Court did not extend immunity as far as Gravel’s publication of the papers in a later book. However, the court supported the immunity over the disclosure through the committee.

If anything, Nunes is in a much stronger position than Gravel. Nunes did not unilaterally release the memo like Gravel and he did so in a committee with direct oversight of the FBI. Conversely, the Pentagon Papers were read at an entirely unrelated subcommittee on buildings and grounds of the Senate Public Works Committee.

It is equally dubious to suggest that the memo may be found to have “mere peripheral connection to legislative acts” or a pure political act to deny immunity. The basis for this claim is simply that the authors and Democrats disagree with the conclusions of the memo. No competent federal judge would rule that such a memo is unrelated to the legislative purpose of oversight over the FBI

Even more bizarrely, there was this warning: “Nunes would do well to remember what befell Senator Daniel Brewster of Maryland.” Nunes would be understandably confused by the historical reference. Brewster claimed immunity over the acceptance of alleged bribes. This facially ridiculous argument was rejected by the Supreme Court, though Brewster was later acquitted of bribery and had the remaining convictions overturned on other grounds.

Where experts argued for months about the dubious crime of “collusion” with the Russians, these experts are now arguing for a crime of “collaboration” with the White House. The idea is that, if Nunes or his staff coordinated in the issuance of the memo, they could be charged for casting doubt on the conduct of the FBI in the early investigation of the Russian matter.

The suggestion of an obstruction case against Nunes reduces the criminal code to a virtual professorial parlor game. For a year, experts have assured eager (if not desperate) audiences that a criminal case against Trump is now in sight. For example, Tribe and Eisen have been alleging a host of unlawful acts, including a lawsuit alleging unconstitutional emoluments that was thrown out by a federal judge in December.”

….Continue reading more @ Jonathan Turley

Democrats Like Speier Criticize Security Breaches, Yet Ignore their own in Awan Bros Scandal | Feb 04 2018

Intel Committee Dems ‘Dangerous,’ ‘Negligent’ In Handling Of Breach By Their Own IT Aide

|| Daily Caller

“Three Democrats on the House Permanent Select Committee on Intelligence have been “dangerous” and “negligent” by seemingly failing to react to evidence of a major security breach by their own IT aides, a former Air Force colonel and career intelligence staffer charged. In light of this, he told The Daily Caller News Foundation, their concerns on committee Republicans voting to release a classified memo ring hollow.

The House inspector general found that a family of Pakistanis working for Democrats made “unauthorized access” to House servers, logging in using members’ personal usernames, covering their tracks, and continuing to access servers even after efforts to stop them. The IG found evidence that data from 17 members may have been funneled onto one server, which law enforcement said was later physically stolen.

Intelligence committee members Democratic Reps. Joaquin Castro of Texas, Andre Carson of Indiana, and Jackie Speier of California employed the aides until they were banned from the network in February 2017. Castro and Speier both said they did not know of any cybersecurity breach, but then they refused to respond when TheDCNF revealed two reports by the House’s internal investigator that showed there was a breach.

“As a member you have an obligation and a responsibility to know. To say you don’t know is a cop-out and excuse. You had no interest in it nor did you care about safeguarding official government documents,” James Waurishuk, a retired Air Force colonel, senior career strategic intelligence officer and National Security Council staffer, told TheDCNF. People with clearances, he said, are obligated to proactively find and report threats.

One of the aides, Imran Awan, had a secret email address — 123@mail.house.gov — that was set up in the name of an intelligence specialist who works for Carson. The secret address remained active after Imran’s main account was blocked. In August, TheDCNF discovered in civil court documents that the address actually belonged to Imran, and alerted Carson’s office of the vulnerability. Carson spokeswoman Jessica Gail did not openly express any alarm.

“Where someone has knowledge that something wasn’t right and rather than make an issue of it — the individual was a friend or someone they had to deal with every day and they wanted to turn a blind eye — in the end it winds up catching both of them,” Waurishuk told TheDCNF. “If you fail to follow the necessary procedures, then depending on the level, people go to jail for that.”

Democrats are “outraged over publishing the memo in accordance with House rules, yet they have nothing to say at all about major security breaches by a staffer they themselves employed,”a Republican intel committee source told TheDCNF on background because the person was not authorized to comment. “Their level of concern about information security issues obviously depends on that issue’s political ramifications for themselves and their party.”

Ranking Member of the intelligence committee Democrat Adam Schiff has attacked the GOP for voting to release a classified memo Republicans say shows abuses of spying authority. Democrats charge Republicans are showing a disregard for security procedures. Minority Leader Nancy Pelosi said committee Chairman Devin Nunes “has disgraced the House Intelligence Committee.” Republicans say the document contains information that Americans have a right to know about.

The Awans were banned from the House network in February but not arrested. Yet in April, Awan was in a House office building at midnight and left a government laptop with the username RepDWS in a decommissioned phone booth.

“With these three members on intel with this whole investigation going on with FISA and unmasking, did these individuals have any access to that info?” Waurishuk asked of that incident and the active email address tied to Carson’s office. “I’d like to see Schiff briefed on this and see what he knows about it.”

….Continue reading more @ Daily Caller

Rep. Ted Lieu Hiring of Pakistani Awan Bros Compromised U.S. National Security | Nov 15 2017

Jonathan Turley on the Nunes Memo | Feb 04 2018

Outcry over the Nunes memo is damning for Democrats and FBI

|| theHill.com | Jonathan Turley

“The release of the four-page memo by the House Intelligence Committee has triggered preset responses from both sides. The memo is, in fact, enlightening in a number of respects. However, the most alarming elements may be what it does not contain.

First, it is important to start with what we previously knew. At the heart of this controversy is the dossier that was compiled by Christopher Steele, a former British spy, and Fusion GPS with funding from Hillary Clinton and the Democratic National Committee. Previously, Clinton’s top campaign lawyer, Marc Elias, and former campaign chairman, John Podesta, denied any connection to the dossier. After news stores confirmed the funding, Elias and Clinton herself admitted that they did fund this effort.

Second, we knew that Steele shopped the information in the dossier to various reporters to try to get them published during the election. Third, the contents of this dossier were so unverified that virtually all of the reporters declined to run the story during the campaign.

The memo confirms that top FBI officials, including former director James Comey and his deputy Andrew McCabe, used the dossier to secure secret surveillance targeting a U.S. citizen. That citizen was Carter Page, an aide to the presidential candidate of the party opposing the Obama administration. Comey signed off on multiple Foreign Intelligence Surveillance Act (FISA) applications targeting Page.

The memo states that the applications never mentioned that the dossier was funded in significant part by the Clinton campaign, even though high-ranking officials knew about that funding. That would obviously be highly material to judging the value of the information. To make matters worse, Steele admitted to FBI agent Bruce Orr, who was later demoted, that he hated Trump and was “desperate that not be elected and was passionate about his not being president.”

….Continue reading at The Hill

 

 

 

Nunes Memo Released by President Trump | Cites 1970’s law for releasing classified information | Feb 02 2018

FACT CHECK: Read The GOP Memo Released By House Intelligence Committee

|| NPR

“A memo alleging the FBI abused its surveillance authority became public on Friday after a push by House Republicans. President Trump authorized the memo’s release, even after the FBI expressed “grave concerns” about the “accuracy” of the document, authored by House intelligence Chairman Devin Nunes, R-Calif.

NPR journalists who cover the Justice Department, the White House and national security have annotated the White House’s authorization letter and the memo itself.

January 18, 2018
Declassified by order of the President on February 2, 2018
To: HPSCI Majority Members
From: HPSCI Majority Staff

The Nunes memo, as it has come to be known, was compiled by members of the Republican staff on the House intelligence committee. On Monday, the committee voted along party lines to release the memo.

Subject: Foreign Intelligence Surveillance Act Abuses at the Department of Justice and the Federal Bureau of Investigation

Purpose

This memorandum provides Members an update on significant facts relating to the Committee’s ongoing investigation into the Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) and their use of the Foreign Intelligence Surveillance Act (FISA) during the 2016 presidential election cycle. Our findings, which are detailed below, 1) raise concerns with the legitimacy and legality of certain DOJ and FBI interactions with the Foreign Intelligence Surveillance Court (FISC), and 2) represent a troubling breakdown of legal processes established to protect the American people from abuses related to the FISA process.

Investigation Update

On October 21, 2016, DOJ and FBI sought and received a FISA probable cause order (not under Title VII) authorizing electronic surveillance on Carter Page from the FISC. Page is a U.S. citizen who served as a volunteer advisor to the Trump presidential campaign. Consistent with requirements under FISA, the application had to be first certified by the Director or Deputy Director of the FBI. It then required the approval of the Attorney General, Deputy Attorney General (DAG), or the Senate-confirmed Assistant Attorney General for the National Security Division.

The FBI and DOJ obtained one initial FISA warrant targeting Carter Page and three FISA renewals from the FISC. As required by statute (50 U.S.C. §1805(d)(1)), a FISA order on an American citizen must be renewed by the FISC every 90 days and each renewal requires a separate finding of probable cause. Then-Director James Comey signed three FISA applications in question on behalf of the FBI, and Deputy Director Andrew McCabe signed one. Then-DAG Sally Yates, then-Acting DAG Dana Boente, and DAG Rod Rosenstein each signed one or more FISA applications on behalf of DOJ.

Due to the sensitive nature of foreign intelligence activity, FISA submissions (including renewals) before the FISC are classified. As such, the public’s confidence in the integrity of the FISA process depends on the court’s ability to hold the government to the highest standard ­— particularly as it relates to surveillance of American citizens. However, the FISC’s rigor in protecting the rights of Americans, which is reinforced by 90-day renewals of surveillance orders, is necessarily dependent on the government’s production to the court of all material and relevant facts. This should include information potentially favorable to the target of the FISA application that is known by the government. In the case of Carter Page, the government had at least four independent opportunities before the FISC to accurately provide an accounting of the relevant facts. However, our findings indicate that, as described below, material and relevant information was omitted.

1) The “dossier” compiled by Christopher Steele (Steele dossier) on behalf of the Democratic National Committee (DNC) and the Hillary Clinton campaign formed an essential part of the Carter Page FISA application. Steele was a longtime FBI source who was paid over $160,000 by the DNC and Clinton campaign, via the law firm Perkins Coie and research firm Fusion GPS, to obtain derogatory information on Donald Trump’s ties to Russia.

  1. Neither the initial application in October 2016, nor any of the renewals, disclose or reference the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior DOJ and FBI officials.
  2. The initial FISA application notes Steele was working for a named U.S. person, but does not name Fusion GPS and principal Glenn Simpson, who was paid by a U.S. law firm (Perkins Coie) representing the DNC (even though it was known by DOJ at the time that political actor were involved with the Steele dossier). The application does not mention Steele was ultimately working on behalf of — and paid by — the DNC and Clinton campaign, or that the FBI had separately authorized payment to Steele for the same information.

2) The Carter Page FISA application also cited extensively a September 23, 2016, Yahoo News article by Michael Isikoff, which focuses on Page’s July 2016 trip to Moscow. This article does not corroborate the Steele dossier because it is derived from information leaked by Steele himself to Yahoo News. The Page FISA application incorrectly assesses that Steele did not directly provide information to Yahoo News. Steele has admitted in British court filings that he met with Yahoo News — and several other outlets — in September 2016 at the direction of Fusion GPS. Perkins Coie was aware of Steele’s initial media contacts because they hosted at least one meeting in Washington D.C. in 2016 with Steele and Fusion GPS where this matter was discussed.”

…..Continue reading more @ NPR with NPR commentary on the memo

Comey, Yates, McCabe, Rosenstein All Signed Off On Misleading FISA Applications

|| Daily Caller

“A number of top FBI and Justice Department officials neglected to provide essential information to the Foreign Intelligence Surveillance Court (FISC) when applying for a warrant to surveil former Trump campaign adviser Carter Page, according to the House Intelligence Committee memo produced Friday.

The memo states that Former FBI Director James Comey, Deputy Attorney General Rod Rosenstein, former Deputy Director of the FBI Andrew McCabe, and former Attorney General Sally Yates were all required to sign off on the FISC warrant application before it was reviewed and ultimately approved.

“As required by statute (50 U.S.C.), a FISA order on an American citizen must be renewed by the ISC every 90 days and each renewal requires a separate finding of probable cause. Then-Director James Comey signed three FISA applications in question on behalf of the FBI, and Deputy Director Andrew McCabe signed one. Sally Yates, then-Acting DAG Dana Boente, and DAG Rod Rosenstein each signed one or more FISA applications,” the memo reads.

The memo further claims those officials were aware at the time of their signing that the unsubstantiated Steele opposition research dossier, which was included to bolster their warrant application, was paid for by the Democratic National Committee (DNC) and the Clinton campaign; but the application did not include that information.

While the memo asserts the dossier was used in the initial warrant application, it does not specify if it was used in the three successive applications to extend the warrant, which must be filed every 90 days and must include new evidence to support probable cause. The aforementioned four senior agents signed off at various points throughout the roughly one year Page was under surveillance.

The importance of the infamous Steele dossier is demonstrated clearly in the memo, which cites McCabe as having testified that the warrant to surveil Page would not have been approved without the politically funded opposition research.

“Furthermore, Deputy Director McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information”

President Donald Trump indicated he was open to the possibility of firing Rosenstein due to his role in failing to disclose the political funding behind the salacious Steele dossier on the FBI’s FISC warrant application.

“Does it make you more likely to fire Rosenstein? Do you still have confidence in him?” Trump was asked by reporters in the oval office Friday after the highly anticipated memo was released.

“You figure that one out,” Trump responded, according to the White House press pool.”

…Continue reading more @ Daily Caller

 

 

New Charges, Arrests for Sanctuary City Politicians? | Jan 16 2018

 DHS Recommends Arrests For Sanctuary City Leaders

|| Daily Caller

“Homeland Security Sec. Kirstjen Nielsen confirmed on Tuesday that her agency has asked the Justice Department to look into policies that would allow for criminal charges against elected leaders who refuse to enforce federal immigration laws.

During a Senate Judiciary Committee oversight hearing, Nielsen said that a request has been submitted to DOJ for consideration.

“The Department of Justice is reviewing what avenues might be available,” Nielsen told California Sen. Kamala Harris.

Harris had asked Nielsen about comments made recently by U.S. Immigration and Customs Enforcement Director Tom Homan.”

….Continue reading more @ Daily Caller

 

 

 

Silicon Valley Shutting Down Free Speech on Twitter with Shadow Bans? | Jan 13 2018

How Many of Twitter’s 1,110 Foreign Visa Holders Are Actively Working to Shut Down Conservative Speech in America?

|| TGP

“On Thursday investigative journalist James O’Keefe and Project Veritas released a shocking report on how Twitter Corporation shadow bans conservative voices on the social media platform.

Of course, the liberal US media ignored the shocking report by Project Veritas.

What is more disturbing is that Twitter filed 869 labor condition applications for H1B visa and 241 labor certifications for green card from fiscal year 2014 to 2016.

In total Twitter applied filed applications for 1,110 foreign workers.
Twitter reportedly has 3,900 employees.

The video has over 138,000 views in about 8 hours.

On Thursday night James O’Keefe challenged the liberal media to cover the story.

The liberal mainstream media ignored the story today as they regularly do when the story does not fit their left-wing narrative.

Of course, the liberal US media ignored the shocking report by Project Veritas.

Watch this Project Veritas clip of Twitter engineer, Pranay Singh show his disgust for the American flag, guns and God. He also calls Trump supporters “rednecks”. He is bragging about censoring and shadowbanning people on Twitter. Let that sink in.

Singh also claims all Trump supporters on Twitter are Russians.

TGP’s Cristina Laila points out the obvious:

…Continue reading more @ TGP

 

Hillary Now Under Investigation Again By the FBI | Jan 05 2017

Report: FBI Launches New Clinton Foundation Investigation

|| Breitbart

John Solomon reports at The Hill that the Department of Justice has launched a new investigation into the activities of the Clinton Foundation while Hillary Clinton was the secretary of state:

The Justice Department has launched a new inquiry into whether the Clinton Foundation engaged in any pay-to-play politics or other illegal activities while Hillary Clinton served as Secretary of State, law enforcement officials and a witness tells The Hill.

FBI agents from Little Rock, Ark., where the Foundation was started, have taken the lead in the investigation and have interviewed at least one witness in the last month, and law enforcement officials said additional activities are expected in coming weeks.

The officials, who spoke only on condition of anonymity, said the probe is examining whether the Clintons promised or performed any policy favors in return for largesse to their charitable efforts or whether donors made commitments of donations in hopes of securing government outcomes.

Read the rest of the story at The Hill.