There are a big differences between a FISA surveillance warrant, which relates to U.S. national security, and a surveillance warrant for a U.S. criminal case. So high is the bar for obtaining a FISA warrant, so clearly stipulated are the conditions to be met, that any clear indication the conditions were violated would be enough for a prosecutor to convene a grand jury.
In that event Mr Obama, as a private citizen, would face criminal prosecution if there was enough evidence to suggest that in obtaining the FISA warrant he intended to harm the United States of America. That argument could be made if the prosecution demonstrated Obama's motive for obtaining the FISA warrant under false pretence was to interfere with the process for electing the nation's president.
Those are a number of "ifs" but they underscore the gravity of obtaining a FISA warrant under false pretense. There is an additional way then-president Obama could have broken FISA law: if he ordered classified information obtained through a FISA warrant to be declassified, then disseminated the information to the public. It's the law that any such information obtained through FISA is to be deleted and destroyed.
In short, behind all the verbal fireworks generated by President Trump's tweets is the towering fact that a FISA warrant is a unique warrant that comes attached to a very stiff set of laws. The application for it must adhere to an extremely narrow and specific set of criteria in order to protect the most fundamental American freedoms -- and protect the FISA program (which has been under severe fire since the Snowden Affair became news). So that by the time the application and affidavit for a FISA warrant come before the FISA judge, it should be beyond argument that the case prompting the application is virtually airtight.
That is just why a FISA warrant is rarely denied -- the applicant has already taken draconian measures to insure the paperwork is in order.
So, that such a warrant was alleged to have been denied in connection with a first attempt by the Obama White House to use FISA against Trump associates would in itself have been a warning to President Obama to desist from further attempts to use FISA. There are signs he ignored the warning.
Could Obama actually go to jail for this? If he broke FISA law, yes.
What about plausible deniability -- shifting the blame onto someone in his presidential administration? Here he would have a problem. Colonel Pat Lang at Sic Semper Tyrannis recently pointed out in his blog's comment section:
... neither the FBI nor the DoJ are in any sense "independent" of the White House. They are subordinate elements of the Executive Branch of the federal government. The EB is commanded by the president of the United States. ...So because only someone connected with the Obama Administration could have applied for a FISA warrant, it would work out to the same difference -- even if a person wanted to take the blame to save Obama: all doors lead to the Oval Office. This would be doubly so if the White House used information from the FISA warrant for political purposes. In that event, Obama couldn't even claim that a rogue staffer in his administration had abused the FISA process without his knowledge. Obviously Obama would've known, if the White House was using the information.
At this point some might ask what Obama was thinking, to have taken such a risk. There would have been virtually no risk if Hillary Clinton had won the presidential election. The Department of Justice under a Clinton White House would have snuffed out even the chance that a violation of FISA law by President Obama would come to public light.
On the other hand if the Democratic party's internal polling showed that Trump did have a chance to win the election, desperation could have pushed Obama to take a risk -- that, and failing to appreciate how big a role the U.S. news media would come to play in the Trump-Russia story in the event Trump became president.
All this said, the scenario I've outlined depends on whether the White House did indeed obtain a FISA warrant and used it. On that question Barack Obama's fate as a private citizen may well turn.
Today Colonel Lang noted in the SST comment section:
I am told that Clapper and Brennan avoided relying on a FISA warrant by going to the British equivalent of NSA (GCHQ) and suggesting that they search their records for information that could be used against Trump and company. The British could collect against this target as a "foreign intelligence operation" without an American warrant and the information could be passed back to the conspirators where it could be spread across the US government ensuring that there would be leaks. plYes, it's an old trick for the U.S. to spy on British citizens in return for the British spying on American ones. Just don't get caught.
Trump will learn what happened, whether with the FISA court or GCHQ or both, because as president he would have the authority to do so.
With that introduction out of the way I turn to the source for my statements about FISA -- a trial attorney whose practice focuses on tax defense, civil rights and First Amendment law, and whose exposition on a complicated topic is wonderfully clear.
Below I've copied much of his article, which I've very lightly edited for additional clarity even though he's a good writer. I also lopped off the beginning of the article and removed a few paragraphs from the rest of the text; this in order to keep his somewhat lengthy discussion as focused as possible on the points he makes about FISA warrants:
Yes, There Could Be Serious Legal Problems if Obama Admin Involved in Illegal Surveillance
by Robert Barnes
3:45 pm - March 4th, 2017
"By itself, misuse of FISA procedures to obtain surveillance is itself a crime."
... 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, then Obama and/or his officials could face serious trouble.
What crimes could have been committed? Ironically, for Democrats: falsely accusing Attorney General Jeff Sessions, perjury and conspiracy to commit perjury, as well as intentional violations of FISA.
Rather shockingly, no law currently forbids misusing the power of the presidency to spy on one’s adversaries. What the law does forbid is:
> lying to any judicial officer to obtain any means of surveillance.
> under criminal penalty, the misuse of FISA.
Both derive from the protections of the Fourth Amendment itself. Under section 1809, FISA makes it a crime for anyone to either “engage in” electronic surveillance under “color of law” under FISA without following the law’s restrictions, or “disclose” or “use” information gathered from it in contravention of the statute’s sharp constrictions.
FISA, 50 USC 1801, et seq., is a very limited method of obtaining surveillance authority. The reason for its strict limits is that FISA evades the regular federal court process, by not allowing regularly, Constitutionally appointed federal judges and their magistrates to authorize surveillance the Fourth Amendment would otherwise forbid.
Instead, the Chief Justice handpicks the FISA court members who have shown an exceptional deference to the executive branch. This is because FISA court members trust the government is only bringing them surveillance about pending terror attacks or “grave hostile” war-like attacks, as the FISA statute limits itself to.
Thus, a FISA application can only be used in very limited circumstances.
FISA can only be used for “foreign intelligence information.” Now that sounds broad but is in fact very limited under the law. The only “foreign intelligence information” allowed as a basis for surveillance is information necessary to protect the United States against actual or potential “grave” “hostile” attack, war-like sabotage or international terror.
Second, it can only be used to eavesdrop on conversations where the parties to the conversation are a foreign power or an agent of a foreign power.
An agent of a foreign power cannot be a United States person unless they are knowingly involved in criminal espionage. No warrant is allowed on that person unless a FISA court finds probable cause that the United States person is knowingly engaged in criminal espionage.
Even then, if it involves a United States person, special steps must be taken to “minimize the acquisition and retention, and prohibit the dissemination, of non- publicly available information concerning un-consenting United States persons.”
This includes procedures that require they never identify the person, or the conversation being surveilled, to the public when that information is not evidence of a particular crime.
Third, the kind of information sought concerns solely information about a pending or actual attack on the country.
That is why the law limits itself to sabotage incidents involving war, not any form or kind of “sabotage,” explicitly limiting itself to those acts identified in section 105 of Title 18 of the United States Code. [emphasis mine]
This bring us to Watergate-on-Steroids, or #ObamaGate. Here are the problematic aspects of the Obama surveillance on Trump’s team, and on Trump himself:
First, it is not apparent FISA could ever be invoked.
Second, it is possible Obama’s team may have perjured themselves before the FISA court by withholding material information essential to the FISA court’s willingness to permit the government surveillance.
Third, it could be that Obama’s team illegally disseminated and disclosed FISA information in direct violation of the statute precisely prohibiting such dissemination and disclosure. FISA prohibits, under criminal penalty, Obama’s team from doing any of the three.
At the outset, the NSA should have never been involved in a domestic US election. Investigating the election, or any hacking of the DNC or the phishing of Podesta’s emails, would not be a FISA matter. It does not fit the definition of war sabotage or a “grave” “hostile” war-like attack on the United States, as constrictively covered by FISA. It is your run-of-the-mill hacking case covered by existing United States laws, which require use of the regular departments of the FBI, Department of Justice, and Constitutionally Senate-appointed federal district court judges, and their appointed magistrates -- not secretive, deferential FISA courts.
Out of 35,000+ requests for surveillance, the FISA court has only ever rejected a whopping 12. Apparently, according to published reports [about Trump's accusation of wiretapping], you can add one more to that — even the FISA court [allegedly] first rejected Obama’s request to spy on Trump’s team under the guise of an investigation into foreign agents of a pending war attack.
Intelligence agents apparently returned to the court, where, it is my assumption, they did not disclose or divulge all material facts to the court when seeking the surveillance the second time around, some of which they would later wrongfully disseminate and distribute to the public.
By itself, misuse of FISA procedures to obtain surveillance is itself a crime.
This raises the second problem: Obama’s team submission of an affidavit to the FISA court. An application for a warrant of any kind requires an affidavit, and that affidavit may not omit material factors.
A fact is “material” if it could have the possible effect of impacting the judicial officer deciding whether to authorize the warrant. Such affidavits are the most carefully drawn up, reviewed, and approved affidavits of law enforcement in our system precisely because they must be fully-disclosing, forthcoming, and include any information a judge must know to decide whether to allow our government to spy on its own.
My assumption would be that intelligence officials were trying to investigate hacking of the DNC, which is not even a FISA-covered crime.
Therefore, serious questions arise about what Obama administration attorneys said to the FISA court for it to even consider the application. If the claim was “financial ties” to Russia then Obama knew he had no basis to use FISA at all. [emphasis mine]
Since Trump was the obvious target, the alleged failure to disclose his name in the second application could be a serious and severe violation of the obligation to disclose all material facts.
Lastly, given the later behavior, it is evident any promise in the affidavit to protect the surveilled information from ever being sourced or disseminated was a false promise, intended to induce the illicit surveillance. This is criminalized both by federal perjury statutes, conspiracy statutes, and the FISA criminal laws themselves.
That raises the third problem: it seems the FISA-compelled protocols for precluding the dissemination of the information were violated, and that Obama’s team issued orders to achieve precisely what the law forbids, if published reports are true about the administration sharing the surveilled information far and wide to promote unlawful leaks to the press.
This, too, would be its own crime, as it brings back the ghost of Hillary’s emails — by definition, FISA information is strictly confidential, or it’s information that never should have been gathered.
FISA strictly segregates its surveilled information into two categories: highly confidential information of the most serious of crimes involving foreign acts of war; or, if not that, then information that should never have been gathered, should be immediately deleted, and never sourced nor disseminated. It cannot be both.
Recognizing this information did not fit FISA would have meant having to delete it and destroy it. According to published reports, Obama’s team did the opposite: order it preserved, ordered the NSA to search it, keep it, and share it; and then Obama’s Attorney General issued an order to allow broader sharing of information and, according to the New York Times, Obama aides acted to label the Trump information at a lower level of classification for massive-level sharing of the information.
The problem for Obama is simple — if it could fit a lower level of classification, then it had to be deleted and destroyed, not disseminated and distributed, under crystal-clear FISA law.
The Obama team’s admission the information could be classified lower then taking actions to insure its broadest distribution could even put Obama smack-middle of the biggest unlawful surveillance and political opponent smear- campaign since Nixon. Except even Nixon didn’t use the FBI and NSA for his dirty tricks. The Watergate break-in would have never happened if Nixon could have just asked the FBI or NSA to tape calls he wanted monitored.
Democrats may regret Jeff Sessions’ recusal, as his replacement is a mini-Sessions: a long-respected, apolitical, highly ethical prosecutor, Dana Boente, whose good reputation is well-warranted from his service at the Tax Division, and who won’t be limited by any perceived ties to Trump given his prior appointment by Obama.
Obama himself appeared scared of Boente, as he removed Boente from the successor-to-Sessions position during the lame-duck part of Obama’s presidency, but Trump restored Boente to that role earlier this month. Democrats may get the investigation they wanted, but it may be their own that end up named in the indictment.
H/T The Last Refuge
Finally, here is one of the paragraphs I removed from the article, for readers who wonder whether a former U.S. president could really be prosecuted:
Can a President be charged with a crime? Only once out of office. While in office, impeachment remains the exclusive remedy in order to avoid a single judicial branch trying to overturn an election, such as a grand jury in any part of the country could.
Once out of office, a President remains immune from civil liability for his duties while President, under a 1982 decision of the United States Supreme Court.
However, as the Nixon pardon attests, nothing forecloses a criminal prosecution of the President after his presidency is complete for crimes against the country. Obama, the Constitutional lawyer, should know that.********