Friday’s Senate vote rejecting Democrats’ demands to call witnesses in the Trump impeachment trial makes the president’s acquittal inevitable. But for the Senate bloviators’ desire to make more pointless speeches, the acquittal — which is scheduled for Wednesday — would have already happened.
The vote will occur the day after Trump delivers his annual State of the Union speech on Tuesday evening. That speech will be pure Trump: boasting about past successes, bragging about successes to come in 2020, and making the Dems squirm. (Those who were given Speaker Nancy Pelosi’s infamous impeachment signing pens may want to return them.)
There will be no post-impeachment period of reflection and wound-licking for the Democrats. They will continue in their belief that Wile E. Pelosi is a political super-genius.
The “investigations” of Trump by Adam Schiff and Jerry Nadler will continue. As Schiff said, “the president’s misconduct cannot be decided at the ballot box, for we cannot be assured that the vote will be fairly won.” Heaven knows, you can’t trust an election to the voters because they may decide to reelect Donald Trump.
The House Dems will continue to hogtie the president and prevent him from getting any legislation that will benefit his agenda regardless of the nation’s interests. That means any new trade deal with the United Kingdom — which should be accomplished quickly now that Brexit has become a reality — will languish in the House without approval at least until after the election.
All of that — and all the election news we’ll be surrounded by — is less important than trying to repair the damage to our system of government created by the FB–CIA “Crossfire Hurricane” investigation of Trump and his campaign in 2016–17. As this column has said repeatedly (see here and here and here), it was the worst abuse of power by federal employees in the history of our nation.
Some of those repairs have already been accomplished. Last week, Attorney General William Barr announced a change in Justice Department policy that will require the signatures of both the attorney general and the director of the FBI in order for the FBI to begin a counterintelligence investigation on any presidential campaign.
Barr’s action could, of course, be reversed by a Democratic attorney general and doesn’t affect the CIA. But it is entirely the right thing to do.
Sometime this year, the U.S. Attorney for Connecticut, John Durham, will probably have a grand jury issue indictments of some of the “Crossfire Hurricane” leaders. Among them will likely be former FBI agent Peter Strzok, former FBI deputy director Andrew McCabe, and former FBI director James Comey. He may also indict some of the CIA’s current and former leaders, including Obama’s CIA director John Brennan and current CIA Director Gina Haspel (Brennan’s protégé), who ran the overseas elements of “Crossfire Hurricane.”
However many of the “Crossfire Hurricane” team are indicted, and whether or not they are convicted, their indictment will shake the FBI (and, we hope, the CIA) to their cores. The indictments will have the effect of dissuading further secret investigations of presidential campaigns, but even that effect will not be permanent, nor will they prevent another “Crossfire Hurricane” from ever happening again.
Several key sections of the Foreign Intelligence Surveillance Act (FISA) through which the FISA court (“FISC”) functions will expire in December. Congress has, unwisely, routinely set “sunset” dates for all or part of FISA.
Because of the nature of intelligence investigations, the FISC operates in secret through “ex parte” proceedings that don’t give notice to the object of a surveillance warrant. The FISC, because it has no means of independently verifying the facts stated in a FISA warrant application, is forced to rely on the facts represented to it by the FBI, CIA, and NSA in applications for the warrants.
By publication in February 2018 of the “Nunes memo,” authored by then–Chairman of the House Permanent Select Committee on Intelligence Devin Nunes, the public — and, of course, the FISC — have known that the FISA warrants the FISC issued against minor Trump campaign aide Carter Page were based entirely on the fictitious “Steele dossier,” the compilation of memoranda written by former British spy Christopher Steele based on anonymous Russian sources. (The dossier was bought and paid for by the Hillary Clinton campaign and the Democratic National Committee.)
But the FISC took no action to correct the FBI’s actions until December 2019, when, in an unusual public decision, it imposed requirements on the FBI intended to require verification of the information presented to it. But a month later the FISC appointed David Kris, a former Obama administration lawyer and blogger who has written extensively in defense of the FBI’s surveillance actions, to oversee the FBI’s actions. Kris’s appointment stunned Republicans, as it should have.
Clearly, the FISC isn’t serious about policing the FBI’s actions and preventing another “Crossfire Hurricane.” The FISC is supervised by Supreme Court Chief Justice John Roberts, who has taken no action to ensure the FISC does anything else. Now that the Dems’ impeachment melodrama is over, Roberts has no excuse for inaction.
There is a solution to the FISC’s actions and inaction. When Congress reauthorizes FISA in December, Republicans should insist on including a provision that would require the FISC to select from among the U.S. attorneys someone who is independent of any administration or political campaign to replace Kris as the FISC’s monitor of the FBI’s actions. The actions of the CIA and NSA should be included in his responsibilities.
There is a constitutional objection to such a provision because an Article 2 official would have some authority over the functions of an Article 3 court, violating the “separation of powers” doctrine. But the FISC’s power to choose — and to remove — such an official should overcome the objection.
Such a requirement in FISA, too, won’t completely ensure against another “Crossfire Hurricane,” because U.S. attorneys are appointed by presidents. In truth, nothing can totally prevent the recurrence of such abuses of power when people are involved, but such a requirement would go a long way toward prevention.
FISA is too important to let lapse, as some libertarians and others advocate. Obtaining, in secret, intelligence information about foreign spies and terrorists operating in and against our nation is essential to our national survival.
The function of the FISC can be fixed, at least in part, by setting barriers against the enormous abuses of power without which “Crossfire Hurricane” would never have gotten off the ground. Republicans on the House and Senate intelligence committees should insist on those fixes come December.